exv10w1



 






Exhibit 10.1




EXECUTION VERSION




STOCKHOLDER VOTING AGREEMENT




     THIS STOCKHOLDER VOTING AGREEMENT (this “Agreement”) is made and entered into as of
November 4, 2005, by and between XO Holdings, Inc., a Delaware corporation (“Seller”) and
the undersigned stockholder (the “Stockholder”).



RECITALS




     WHEREAS, concurrent with the execution and delivery hereof, Seller, XO Communications, Inc., a
Delaware corporation (the “Company”) and Elk Associates LLC (“Buyer”), a Delaware limited
liability company, are entering into an Equity Purchase Agreement of even date herewith (as it may
be amended from time to time pursuant to the terms thereof, the “Purchase Agreement”),
which provides for the sale by the Seller of all of the equity interests in XO Communications, LLC,
a Delaware limited liability company and wholly-owned subsidiary of the Seller, constituting
substantially all of the assets of the Seller;



     WHEREAS, as of the date hereof, the Stockholder is the record owner of such number of shares
of Company Common Stock and Company Preferred Stock as is indicated on Exhibit A to this
Agreement, and is also a beneficial owner of such shares for purposes of Rule 13d-3 under the
Securities Exchange Act of 1934; and



     WHEREAS, in consideration of the execution and delivery of the Purchase Agreement by the
Company and so as to facilitate the consummation of the transactions contemplated by the Purchase
Agreement, the Stockholder desires to agree to vote its Shares (as defined below) on the terms and
subject to the conditions set forth herein.



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein, and intending to be legally bound, the parties hereto hereby agree as follows:



     1. Certain Definitions.



          (a) Capitalized terms used herein without definition are used as defined in the Purchase
Agreement, and, in addition:





          “Board” means the Board of Directors of the Company.




          “Company Common Stock” means the shares of common stock, $0.01 par value per
share, of the Company.




          “Company Preferred Stock” means the shares of preferred stock, $0.01 par value
per share, of the Company designated as 6% Series A Convertible Preferred Stock.




          “Company Stockholder Approval” means the adoption by the Stockholder of the
Purchase Agreement and the approval of the transactions contemplated thereby or referenced
therein, in each case upon the recommendation of the Board and the Special Committee.



 









 






          “Expiration Date” means the earlier of (i) the day after the Company
Stockholder Approval and (ii) the termination of the Purchase Agreement in accordance with
its terms.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Illiquid Proposal” means an Alternative Transaction or Competing Proposal that
contemplates consideration other than cash or cash equivalents.




          “Person” means any individual, corporation, limited liability company, general
or limited partnership, unincorporated association, joint venture, or other business
enterprise or entity.




          “Qualifying Superior Proposal” means a Superior Proposal that (a) is not
subject to the satisfaction of the competing bidder or any party providing financing to the
bid with the results of any further due diligence investigation of the Company; and (b) is
not subject to a financing condition, other than a condition coupled with a commitment
letter or commitment letters from a financial institution or financial institutions of
recognized standing which themselves contain only customary conditions and are not subject
to internal approvals; and provided further that (i) a Competing Proposal shall not
be deemed to be a Qualifying Superior Proposal if it contemplates a termination fee of more
than 3% of the purchase price provided therein plus actual, reasonable out-of-pocket
expenses and (ii) an Alternative Transaction shall not be deemed to be a Qualifying Superior
Proposal if it contemplates a termination fee of more than 3% of the purchase price provided
therein, unless the offer contemplates a bid of at least $75 million more than the highest
outstanding bid, but in any event the termination fee shall be no more than 4% of the
purchase price provided therein.




          “Shares” means (i) all shares of Company Common Stock, Company Preferred Stock
and other voting securities of Company owned, beneficially or of record, by the Stockholder
as of the date hereof, (ii) all additional shares of Company Common Stock, Company Preferred
Stock and other voting securities of Company acquired by the Stockholder, beneficially or of
record, during the period commencing with the execution and delivery of this Agreement and
expiring on the Expiration Date, and (iii) such other shares of Company Common Stock,
Company Preferred Stock and other voting securities of Company over which the Stockholder
has or will have voting power during the period commencing with the execution and delivery
of this Agreement and expiring on the Expiration Date.




          “Special Committee” means that special committee of the Board appointed on
April 22, 2005.



          (b) 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 followed by the words “without limitation.”




          (c) Defined terms used herein but not otherwise defined herein have the meaning set forth in
the Purchase Agreement.




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     2. Transfer of Voting Rights. At all times during the period commencing with the
execution and delivery of this Agreement and expiring on the Expiration Date, the Stockholder shall
not deposit (or permit the deposit of) any Shares in a voting trust or grant any proxy or enter
into any voting agreement or similar agreement in contravention of the obligations of the
Stockholder under this Agreement with respect to any of the Shares.



     3. Agreement to Vote Shares. The Stockholder hereby agrees that, until this Agreement
is terminated pursuant to Section 6 hereof, at any meeting of the holders of Shares (including a
decision by written consent), however called, and at every adjournment or postponement thereof, the
Stockholder shall:



          (a) appear at the meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum;




          (b) subject to Section 3(d) hereof, vote the Shares or cause the Shares to be voted at the
Stockholders’ Meeting called for the purpose of voting on the Purchase Agreement and the
transactions contemplated thereby, or execute consents or cause such consents to be executed in
respect of the Shares when requested to execute such consents by the Special Committee for the
purpose of voting for the Purchase Agreement and the transactions contemplated thereby, in respect
thereof, in favor of the adoption by the Seller’s stockholders of the Purchase Agreement and the
approval of the transactions contemplated thereby, including any action necessary to effectuate the
Restructuring Merger, waive any dissenter or appraisal right it may have in respect of such
transaction and any action required in furtherance thereof;




          (c) subject to 3(d) hereof, vote, or execute consents in respect of the Shares, or cause
the Shares to be voted, or consents to be executed in respect thereof, against any amendment of the
Company’s Certificate of Incorporation or By-laws or other proposal, action or transaction
involving the Company or any of its Subsidiaries or any of its stockholders, which amendment or
other proposal, action or transaction could reasonably be expected to (A) prevent or materially
impede or delay the consummation of the Purchase Agreement or the other transactions contemplated
by the Purchase Agreement or the consummation of the transactions contemplated by this Agreement,
or (B) change in any manner the voting rights of the Shares presented to the stockholders of the
Company (regardless of any recommendation of the Board of Directors of the Company) or in respect
of which vote or consent of the Company’s stockholders is requested or sought; provided,
however, the Stockholder shall vote, or execute consents in respect of the Shares or cause
the Shares to be voted, or consents to be executed in favor of any amendment of the Company and any
of its Subsidiaries’ Certificate of Incorporation or By-laws or other proposal, action or
transaction, as necessary, in order to effect the transactions contemplated by the Restructuring
Merger.




          (d) Notwithstanding the provisions of the foregoing, and provided that each of Seller and the
Company complies with their respective obligations under the Purchase Agreement, including, without
limitation, Section 7.3 thereof, the Stockholder agrees that it, without the consent of the Special
Committee, shall (i) not vote in favor of or consent to adoption of the Purchase Agreement and the
transactions contemplated thereby (including the Limited Liability Company Agreement Amendment)
unless and until the Proxy Statement has been reviewed and approved by the SEC, (ii) not vote in
favor of or consent to the adoption of the





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Purchase Agreement and the transactions contemplated thereby (including the Limited Liability
Company Agreement Amendment) following any termination of the Purchase Agreement pursuant to
Section 11(c)(i), and (iii) (A) vote the Shares or cause the Shares to be voted at any meeting of
the stockholders of the Company called, or (B) execute consents or cause such consents to be
executed in respect of the Shares when requested to execute such consents by the Special Committee,
for the purpose of voting for the consummation of any Alternative Transaction which has been
determined to be a Superior Proposal (other than an Illiquid Proposal) in accordance with Section
7.3(c)(ii) of the Purchase Agreement and is a Qualifying Superior Proposal, in respect thereof, in
favor of the adoption by the Seller’s stockholders of such Qualifying Superior Proposal, including
any action necessary to effectuate the Restructuring Merger, and any action required in furtherance
thereof.




     4. Covenants of the Stockholder. The Stockholder covenants and agrees with the
Company and Seller that, during the period commencing on the date hereof and ending on the date
this Agreement is terminated under Article 6 hereof:




     (a) The Stockholder shall not, directly or indirectly, sell, transfer, pledge,
hypothecate, encumber, assign or dispose of any Shares (or the beneficial ownership thereof)
or offer to make such a sale, transfer or other disposition to any person, in each case, in
a manner that would materially impair the ability of the Stockholder to satisfy its
obligations under Section 3 hereof.




     (b) The Stockholder shall execute and deliver such other documents and instruments and
take such further actions as are necessary in order to ensure that the Seller and the
Company receives the benefit of this Agreement.



     5. Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Seller as follows:




     (i) The Stockholder has the requisite limited liability company power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of this
Agreement by the Stockholder and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Stockholder. This Agreement has been duly executed and delivered by or on behalf of
the Stockholder and constitutes a valid and legally binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except that such enforceability may be limited by (x) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors’ rights
generally and (y) equitable principles which may limit the availability of certain
equitable remedies (such as specific performance) in certain instances.




     (ii) As of the date hereof, all of the Shares of which the Stockholder is the
record and beneficial owner of are set forth on Exhibit A hereto, such
Shares are free and clear of any liens, claims, encumbrances, mortgages, security
interests and charges of any nature whatsoever (collectively,
“Encumbrances”),



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other than Encumbrances created by this Agreement, and such Shares are not
subject to any preemptive right of any stockholder of the Company.




     (iii) The execution and delivery of this Agreement by the Stockholder does not,
and the performance of this Agreement by the Stockholder will not, (A) require any
consent, approval, authorization or permit of, or filing with or notification to,
any Governmental Entity or any other Person by the Stockholder; (B) conflict with,
or result in any violation of, or default (with or without notice or lapse of time
or both) under any provision of, the certificate of incorporation, by-laws or
analogous documents of the Stockholder or any other agreement to which the
Stockholder is a party, including any voting agreement, stockholder agreement,
voting trust, trust agreement, pledge agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise or license; or (C) conflict with or violate any judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to the Stockholder or
to any of the Stockholder’s property or assets.



     6. Termination. This Agreement shall terminate and be of no further force or effect
as of the Expiration Date except for the provisions of Sections 2 and 3(d) hereof, which shall
terminate and be of no further force and effect as of the earlier of (i) the day after the adoption
by the Stockholder of the purchase agreement relating to the applicable Superior Proposal and the
Company Stockholder Approval and (ii) the termination of such purchase agreement in accordance with
its terms.



     7. Severability. If any term or other provision of this Agreement is held invalid,
illegal or incapable of being enforced by any court of competent jurisdiction, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
legal substance of the transactions contemplated hereby is not affected in any manner materially
adverse to any party hereto. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.



     8. Binding Effect and Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided that except as otherwise specifically provided herein,
neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be
assigned by any of the parties hereto without prior written consent of the other parties hereto
except as expressly contemplated by Section 2 hereof and except that the Company, without obtaining
the consent of any other party hereto, shall be entitled to assign this Agreement or all or any of
its rights or obligations hereunder to any one or more Affiliates of the Company, but no
assignment by the Company under this Section 8 shall relieve the Company of its obligations under
this Agreement. Any assignment in violation of the foregoing shall be void.



     9. Amendments and Modification. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement executed



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by each of the parties hereto; provided that any provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties entitled to the benefit
thereof by a writing signed by each such party or an authorized representative thereof.




     10. Specific Performance; Injunctive Relief. The parties hereto acknowledge that the
Company shall be irreparably harmed and that there shall be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder set forth in this Agreement.
Therefore, the Stockholder hereby agrees that, in addition to any other remedies that may be
available to the Company upon any such violation, the Company shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by any other means available
to such party at law or in equity.



     11. Notices. All notices and other communications pursuant to this Agreement shall be
in writing and deemed to be sufficient if contained in a written instrument and shall be deemed
given if delivered personally, telecopied, sent by nationally recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties
at the following address (or at such other address for a party as shall be specified by like
notice): if to the Company, to its address provided in the Purchase Agreement, with a copy to the
Company’s counsel; and if to the Stockholder, to the Stockholder’s address shown on Exhibit
A.



     12. Governing Law. This Agreement shall be governed by the laws of the State of
Delaware, without reference to principles of conflicts of law.



     13. Entire Agreement. This Agreement, together with the documents expressly referred
to herein, contain the entire understanding of the parties in respect of the subject matter hereof,
and supersede all prior negotiations and understandings between the parties with respect to such
subject matter.



     14. Effect of Headings. The section headings are for convenience only and shall not
affect the construction or interpretation of this Agreement.



     15. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original, but all of which together shall constitute one and the same agreement.



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     IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the
date first above written.



	 	 	 	 	 
	 
	 	 	XO HOLDINGS, INC.
	 
	 

	 	By:	 	/s/ Carl J. Grivner
	 

	 	 	 	 
	 

	 	Name:	 	Carl J. Grivner
	 

	 	Title:	 	President and Chief Executive
Officer
	 
	 	 	 	 
	 
	 	 	CARDIFF HOLDING LLC
	 
	 

	 	By:	 	/s/ Edward Mattner
	 

	 	 	 	 
	 

	 	Name:	 	Edward Mattner
	 

	 	Title:	 	Authorized Signatory