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.


 


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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 approval of the Merger and the other transactions
contemplated by the Merger Agreement. 
Each Shareholder has, and will have as of the Effective Time, good title
to all of the shares of Company Capital Stock set forth below his, her or its
name on the signature page hereto which, as of the Effective Time, will be
free and clear of all liens, security interests and encumbrances or any
restrictions on transfer, other than any restrictions contained in any
Restricted Stock Agreement entered into between the Company and any such
Shareholder prior to the date hereof.


 


(e)                                  Each
Shareholder has the financial capability to make any payment required to be
made by it under this Agreement and covenants that it will maintain assets (or
uncalled capital commitments) with a net value of at least an amount equal to
the amount received by such Shareholder pursuant to the Merger until the later
of four years from the Effective Time or the final resolution of all claims
(except for those of actual fraud) for indemnification under Article IX of
the Merger Agreement.


 


6.                                       Indemnification.


 


(a)                                  Subject
to the limitations of Sections 6(b) hereof, during the period commencing
on the date of the termination of the Escrow Agreement and ending on the
two-year anniversary of the termination of the Escrow Agreement, the
Shareholders shall, jointly and severally, indemnify in full the Parent
Indemnified Parties and hold them harmless from and against any Parent Losses
which the Parent Indemnified Parties may suffer, sustain or become subject to
as a


 


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result of a breach of any of the Extended Reps as contained in, and
defined in, the Merger Agreement or any covenant of the Company set forth in Article V
or Article VI of the Merger Agreement the performance of which may or is
specified to occur after the expiration of such two-year period for which a
clam may be brought through the survival period set forth in Section 9.1
of the Merger Agreement, which survival period shall in no event be more than
four years after the date hereof, and which claims with respect to such Parent
Losses shall have arisen on or after the 18-month anniversary from the date
hereof (collectively, the “Extended Rep
Parent Losses”).


 


(b)                                 After
the termination of the Escrow Agreement, the Shareholders shall be jointly and
severally liable to the Parent Indemnified Parties for any Extended Rep Parent
Loss, and Parent shall be entitled to reimbursement pursuant to the
indemnification terms contained in this Agreement, (i) only if Parent
delivers to Shareholders’ Representative a written notice, pursuant to Section 9.4
and 9.5 of the Merger Agreement, as applicable, with respect to such Parent
Indemnified Party’s Claim to be indemnified for such Parent Losses prior to
expiration of the applicable survival period set forth in Section 9.1 of
the Merger Agreement and (ii) to the extent the aggregate amount of all
Parent Losses exceeds the Basket Amount (including, without limitation, those
incurred prior to the termination of the Escrow Agreement), in which case the
Shareholders shall be obligated to indemnify Parent Indemnified Parties for the
total amount of such Extended Rep Parent Losses in excess of the Basket Amount,
provided, however, that the Basket Amount shall apply only to breaches,
inaccuracies or misrepresentations of representations and warranties other than
those set forth in Sections 3.1, 3.3, 3.4 and 3.12 of the Merger Agreement and
shall not apply to (i) any breaches of any covenants of the Company set
forth in Article V or Article VI of the Merger Agreement or (ii) any
Parent Losses related to any action required to enforce the indemnification
obligations contained in this Agreement. 
Except for actual fraud in connection with any breach or misrepresentation
by the Company, the aggregate liability of the Shareholders for all amounts
under this Section 6(b) shall not exceed an amount equal to the
amount of the difference between the Cap and the amount of the Escrow Account
paid to Parent pursuant to the terms of the Escrow Agreement.


 


(c)                                  Sections 9.4
and 9.5 of the Merger Agreement shall govern the procedures for giving
notice of claims for indemnification and for asserting claims for
indemnification under this Agreement.


 


7.                                       Capacity.  The parties hereby agree that the
Shareholders are executing this Agreement solely in their capacity as
Shareholders of the Company.  Nothing
contained in this Agreement shall limit or otherwise affect the conduct or
exercise of any Shareholder’s fiduciary duties as an officer or director of the
Company.


 


8.                                       Further
Assurances.  Each Shareholder will,
upon the request of Parent, execute and deliver such documents and take such
action reasonably requested by Parent to effectuate the purposes of this
Agreement and to consummate the transactions contemplated by the Merger
Agreement.


 


9.                                       Termination.  Other than as otherwise provided in
Sections 3 and 6 of this Agreement, the obligations of the parties under
this Agreement shall terminate upon the earlier of (a) the Effective Time
and (b) the termination of the Merger Agreement in accordance with its


 


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terms.  In the event this
Agreement is terminated in accordance with the preceding sentence, except as
otherwise provided in Section 6 of this Agreement, this Agreement shall
immediately become void, there shall be no liability under this Agreement on
the part of Parent, its officers or directors, the Shareholders, and all rights
and obligations of the parties to this Agreement shall cease.


 


10.                                 Expenses.  Each party hereto shall pay its own expenses
incurred in connection with this Agreement, except as otherwise specified in
the Merger Agreement.


 


11.                                 Specific
Performance.  The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. 
It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement, without the
necessity of proving damages or posting any bond, and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.


 


12.                                 Notice.  Unless otherwise provided in this Agreement,
all notices and other communications under this Agreement shall be in writing
and may be given by any of the following methods:  (a) personal delivery (with written
confirmation of receipt); (b) registered or certified mail, postage
prepaid (receipt requested); (c) overnight delivery service (receipt
requested); or (d) by facsimile, telecopy or other electronic transmission
device (with receipt acknowledgement, provided that such acknowledgement does
not include an acknowledgement generated automatically by a facsimile, telecopy
or other electronic transmission device). 
Such notices and communications shall be sent to the appropriate party at
its address given below or at such other address for such party as shall be
specified by notice given under this Agreement (and shall be deemed given upon
receipt by such party or upon actual delivery to the appropriate address):


 


(a)                                  if
to a Shareholder:  


 


To the
addresses set forth on Schedule 1 hereto


 


with a copy to:


 


Bowditch & Dewey, LLP

311 Main Street

Worcester, MA 01615

Attn: Michael P. Angelini, Esquire


Fax:  (508)
798-3537


 


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(b)                                 if
to Parent:


 


ADC
Telecommunications, Inc.


P.O. Box
1101


Minneapolis,
Minnesota  55440-1101


Attention:
Office of the General Counsel


Fax: (952) 917-0893


 


with a copy to:


 


Dorsey &
Whitney LLP


50
South Sixth Street


Minneapolis,
Minnesota  55402


Attention:  Robert A. Rosenbaum


Fax:  (612)
340-7800


 


13.                                 Parties
in Interest.  This Agreement shall
inure to the benefit of and be binding upon the parties named herein and their
respective successors and assigns. 
Nothing in this Agreement, expressed or implied, is intended to confer
upon any person other than the Shareholders, Parent or Merger Sub, or their
permitted successors or assigns, any rights or remedies under or by reason of
this Agreement.


 


14.                                 Entire
Agreement; Amendments.  This
Agreement, together with the Merger Agreement and the other documents referred
to therein, constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, both written or oral, between the parties with
respect to the subject matter hereof. 
This Agreement may not be changed, amended or modified orally, but only
by an agreement in writing signed by the party against whom any waiver, change,
amendment, modification or discharge may be sought.


 


15.                                 Assignment.  No party to this Agreement may assign any of
its rights or delegate any of its obligations under this Agreement (whether by
operation of law or otherwise) without the prior written consent of the other
party hereto.


 


16.                                 Interpretation.
 The language used in this Agreement
shall be deemed to be the language chosen by the parties to express their
mutual intent, and no rule of strict construction shall be applied against
any party.  The headings of articles and
sections herein are for convenience of reference, do not constitute a part of
this Agreement, and shall not be deemed to limit or affect any of the
provisions hereof.


 


17.                                 Counterparts.  This Agreement may be executed via facsimile
in two or more counterparts, each of which, when executed, shall be deemed to
be an original and all of which together shall constitute one and the same
document.


 


18.                                 Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the principles of conflicts of laws
thereof.


 


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19.                                 Validity.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.  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 transactions contemplated hereby are fulfilled to the
extent possible.


 


20.                                 Shareholders’
Representative.  Each of the
undersigned Shareholders acknowledges the appointment of Michael J. Noonan as
the Shareholders’ Representative in accordance with the Merger and the Merger
Agreement.


 


[Remainder
of page left blank; signature page follows]


 


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IN WITNESS WHEREOF,
the parties hereto have caused this Voting Agreement to be executed as of the
day and year first written above.


 


	
  ADC
  TELECOMMUNICATIONS, INC.

  	
  SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Gokul
  V. Hemmady

  	
   

  	
    /s/ Michael
  J. Noonan

  
	
  Name: Gokul V.
  Hemmady

  	
  Michael J.
  Noonan

  
	
  Title: Vice
  President, Chief Financial Officer

  	
   

  
	
   

  	
  FIBER
  OPTIC NETWORK SOLUTIONS

  CORP. VOTING TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael
  P. Angelini

  
	
   

  	
   

  	
  Michael P.
  Angelini, Trustee of the

  aforesaid Trust and not individually

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Michael
  J. Noonan

  
	
   

  	
   

  	
  Michael J.
  Noonan, Trustee of the aforesaid

  Trust and not individually

  
	
   

  	
   

  
	
   

  	
  OAK
  INVESTMENT PARTNERS IX,

  LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: Oak
  Associates IX, LLC, its Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Edward F. Glassmeyer

  
	
   

  	
  Name:

  	
  Edward F.
  Glassmeyer

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  OAK
  IX AFFILIATES FUND, LIMITED

  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: Oak
  Associates IX, LLC, its Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Edward F. Glassmeyer

  
	
   

  	
  Name:

  	
  Edward F.
  Glassmeyer

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
  OAK
  IX AFFILIATES FUND-A, LIMITED

  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: Oak
  Associates IX, LLC, its Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Edward F. Glassmeyer

  
	
   

  	
  Name:

  	
  Edward F.
  Glassmeyer

  
	
   

  	
  Title:

  	
  Managing Member

  
						



 





















 


	
   

  	
  MORGENTHALER
  PARTNERS VI, L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Morgenthaler
  Management Partners VI,

  
	
   

  	
   

  	
  LLC, its General
  Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  R.D. Davey

  
	
   

  	
  Name:

  	
  R.D. Davey

  
	
   

  	
  Title:

  	
  Managing Member