Exhibit 10.1
VOTING AGREEMENT
This VOTING AGREEMENT , dated
as of July 21, 2005 (the “ Agreement
” ), is by and among ADC
Telecommunications, Inc., a Minnesota corporation (“
Parent ”), and each Shareholder of Fiber Optic
Network Solutions Corp., a Massachusetts corporation (the “
Company ”), whose signature is set forth on the
signature pages to this Agreement (each a “
Shareholder ” and, collectively, the “
Shareholders ”). Capitalized terms which
are used but not defined herein shall have the meanings ascribed to
them in the Merger Agreement (as defined below).
WITNESSETH:
WHEREAS , concurrently with the execution and delivery
of this Agreement, Parent and the Company are entering into an
Agreement and Plan of Merger, dated July 21, 2005 (the “
Merger Agreement ”), which provides for Falcon
Venture Corp., a Massachusetts corporation and a wholly owned
subsidiary of Parent (“ Merger Sub ”), to
be merged with and into the Company in accordance with the
Massachusetts Business Corporation Act and the terms of the Merger
Agreement, as a result of which the Company will be the surviving
corporation and will be a wholly owned subsidiary of Parent (the
“ Merger ”);
WHEREAS , the execution of this Agreement by the
Shareholders is a condition to Parent’s willingness to enter
into the Merger Agreement on the terms contained
therein;
WHEREAS , the Shareholders own in the aggregate over
66.67% of the Company Capital Stock issued and outstanding;
and
WHEREAS , the Shareholders desire that the Company and
Parent consummate the Merger contemplated by the Merger Agreement
and are willing to enter into this Agreement to induce Parent to
enter into the Merger Agreement.
NOW, THEREFORE
, in consideration of the premises
and of the mutual covenants and agreements set forth herein, the
parties hereto, intending to be legally bound, agree as
follows:
1.
Agreement to
Vote, Not to Tender . At such time as the
Company convenes a meeting of, solicits written consents from or
otherwise seeks a vote of, the Company’s shareholders for the
purpose of considering and approving the Merger and the other
transactions contemplated by the Merger Agreement, each of the
Shareholders hereby agrees to vote all shares of Company Capital
Stock owned by such Shareholder (whether held directly or
beneficially) in favor of the Merger and the other transactions
contemplated by the Merger Agreement and all other actions
necessary or desirable for the consummation of the Merger. In
addition, during the term hereof, each of the Shareholders further
agrees to vote all such shares against any other transaction
presented to the shareholders of the Company that could have the
effect of impeding the ability of Parent and the Company to
consummate the Merger. Furthermore, each Shareholder agrees
not to tender, sell or otherwise transfer such Shareholder’s
shares of Company Capital Stock to any third party.
2.
IRREVOCABLE
PROXY . EACH SHAREHOLDER
HEREBY GRANTS TO AND APPOINTS MERGER SUB AND THE GENERAL COUNSEL OF
PARENT OR HIS DESIGNEE, AND EACH OF THEM INDIVIDUALLY, THE
SHAREHOLDER’S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO THE
SHAREHOLDER’S SHARES OF COMPANY CAPITAL STOCK IN ACCORDANCE
WITH SECTION 1 HEREOF. THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE IRREVOCABLE UNTIL THIS AGREEMENT IS
TERMINATED PURSUANT TO SECTION 9 HEREOF, AND THE SHAREHOLDER
WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS
MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY IT WITH RESPECT TO
THE SHAREHOLDER’S SHARES OF COMPANY CAPITAL
STOCK.
3.
Limitation
. Each
Shareholder shall retain at all times the right to vote such
Shareholder’s shares of Company Capital Stock in that
Shareholder’s sole discretion on all matters, other than
those set forth in Section 1, that are at any time or from
time to time presented for consideration by the Company’s
Shareholders generally and the proxy granted pursuant to
Section 2 hereof shall be inapplicable in such
circumstances. The proxy granted by the shareholders pursuant
to Section 2 of this Agreement shall terminate on the earlier
of (a) the Effective Time of the Merger, or (b) the
termination of the Merger Agreement in accordance with its
terms.
4.
No
Negotiations . Prior to termination
of this Agreement pursuant to Section 9 hereof, each
Shareholder hereby covenants and agrees that he, she or it will
not, directly or indirectly, solicit, initiate or encourage
submission of any proposal or offer from any person or entity
(including any of its or their officers or employees,
representatives, agents, or affiliates) relating to any
liquidation, dissolution, recapitalization, tender or exchange
offer, solicitation of proxies, merger, consolidation or
acquisition or purchase of all or a material portion of the assets
of, or any equity interest in, the Company or any Subsidiary or
other similar transaction or business combination involving the
Company or any Subsidiary (an “ Acquisition
Proposal ”), or participate in any discussions or
negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way
with, or assist or participate in, facilitate or encourage, any
effort or attempt by any other person or entity to do or seek any
of the foregoing, except to extent necessary to fulfill such
Shareholder’s fiduciary duties as an officer or director of
the Company. Each Shareholder shall promptly notify the
Company if any such Acquisition Proposal, or any inquiry from or
contact with any person with respect thereto, is made and shall
promptly provide the Company with such information regarding such
Acquisition Proposal, inquiry or contact as the Company may
request. In addition, prior to termination of this Agreement
pursuant to Section 9 hereof, no Shareholder shall, directly
or indirectly, make or authorize any public statement,
recommendation or solicitation in support of any proposal made by
any person, entity or group (other than Parent) relating to any of
the foregoing.
2
5.
Representations, Warranties
and Covenants of the Shareholders . The Shareholders
severally, but not jointly, hereby represent and warrant to Parent
that:
(a)
Each Shareholder
has the requisite legal capacity and authority to execute and
deliver this Agreement, to perform the obligations of the
Shareholder under this Agreement and to consummate the transactions
contemplated by this Agreement. If the Shareholder is not an
individual, it has taken all required actions to authorize the
execution, delivery and performance of this Agreement. This
Agreement has been duly executed and delivered by such Shareholder
and constitutes a valid and legally binding obligation of such
Shareholder enforceable in accordance with its terms, except to the
extent that enforceability thereof may be limited by bankruptcy and
other similar laws and general principles of equity or public
policy;
(b)
Each
Shareholder’s execution, delivery and performance of this
Agreement will not result in the creation of any Lien upon any of
the shares of Company Capital Stock held by such Shareholder under
any of the terms, conditions or provisions of any contract to which
such Shareholder is a party;
(c)
No filing or
registration with or notification to and no permit, authorization,
consent or approval of, any court, commission, governmental body,
regulatory authority, agency or tribunal wherever located is
required to be obtained, made or given by any Shareholder in
connection with the execution, delivery and performance by any
Shareholder of this Agreement; and
(d)
Schedule 1
to this Agreement correctly sets forth the number of shares of
Company Capital Stock owned by each Shareholder as of the date of
this Agreement, all of which will be voted in favor of
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