VOTING AGREEMENT
THIS
VOTING AGREEMENT (“Agreement”)
is
made this 19th
day of
January, 2007 by and among XXXXXX X. XXXXXX (“Xxxxxx”),
XXXXXX X. XXXXXXXXX (“Xxxxxxxxx”
and
together with Xxxxxx the “Target
Group”),
C.
XXXXXX XXXXXXXX (“XxXxxxxx”),
XXXXXX X. XXXXX (“Xxxxx”
and
together with XxXxxxxx the “Founders
Group”)
and
FORTRESS AMERICA ACQUISITION CORPORATION, a Delaware corporation (“FAAC”).
RECITALS:
R-1. The
members of the Target Group were all of the members of VTC, LLC, a Maryland
limited liability company (“VTC”),
and
Vortech, LLC, a Maryland limited liability company (“Vortech”).
R-2. The
members of the Founders Group are shareholders of FAAC and own beneficially
and
of record shares of common stock of FAAC, par value $0.0001 per share
("Common
Stock"),
as
set forth opposite each of their names on Exhibit
A.
R-3. Pursuant
to the terms of that certain Second Amended and Restated Membership Interest
Purchase Agreement dated July 31, 2006, (the “Membership
Interest Purchase Agreement”)
FAAC
acquired all of the Target Group’s membership interests in each of VTC and
Vortech effective as of the date hereof (the “Acquisition
Transaction”).
R-4. In
connection with the Acquisition Transaction and pursuant to the Membership
Interest Purchase Agreement, the members of the Target Group have received
as of
the date hereof and own beneficially of record (subject to certain escrows
and a
Lock Up Agreement all as described in the Membership Interest Purchase
Agreement) Common Stock as set forth opposite each of their names on
Exhibit
A.
R-5. As
a
condition to the consummation of the Acquisition Transaction, the members of
the
Target Group and the Founders Group (collectively the “Stockholders”)
have
agreed to enter into this Agreement for the purpose of voting their respective
shares of Common Stock (all such shares and any shares of which ownership of
record of the power to vote is hereafter acquired by any of the Stockholders,
whether by purchase, conversion or exercise, prior to the termination of this
agreement being hereinafter referred to as the “Shares”).
R-6. Capitalized
terms used but not defined in this Agreement shall have the meanings ascribed
to
them in the Membership Interest Purchase Agreement.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements and
covenants set forth herein and in the Membership Interest Purchase Agreement,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows.
1
ARTICLE
I
DIRECTORS
AND OFFICERS
1.1 Voting
of Shares.
Subject
to Section 3.11 below, each Stockholder will vote such Stockholder’s Shares in
support of Director Designees (as defined below) and otherwise pursuant to
the
provisions of this Section 1.1:
(a) Board
Size and Structure.
The
board of directors of FAAC (the “Board”)
will
consist of nine members, consisting of three classes of three members each.
Members of the first class will stand for election in 2007 and every three
years
thereafter (the “Class
A Directors”),
members of the second class will stand for election in 2008 and every three
years thereafter (the “Class
B Directors”),
and
members of the third class will stand for election in 2009 and every three
years
thereafter (the “Class
C Directors”).
(b) Designation
Rights.
(i) The
members of the Target Group will have the right to jointly propose to the Board
(or appropriate nominating committee thereof), and to otherwise propose for
nomination in accordance with FAAC’s governing documents, four designees as
members of the Board (each a “Target
Group Designee”),
provided that at least two of the Target Group Designees constitute "independent
directors" within the meaning of the Nasdaq rules and further provided that
at
least one such “independent director” is approved by members of the Board other
than the Target Group Designees. Each of the three classes of the Board will
include at least one Target Group Designee.
(ii) The
members of the Board other than the Target Group Designees will have the right
to designate members of the Board not designated by the members of the Target
Group pursuant to subclause (i) above (each an “At
Large Designee”),
provided that at least three At Large Designees are “independent directors”
within the meaning of the Nasdaq rules and further provided that at least one
such “independent director” is
approved by the members
of the Target Group (in their capacities as Stockholders), which approval may
not be unreasonably withheld or delayed.
(c) Initial
Board Composition.
The
members of the Board immediately following the execution and delivery of this
Agreement will be:
|
Class
A Directors
|
Xxxxxx
X. Xxxxxxxxx
Xxxxx
X. Xxxxxxxx
__________________
|
|
|
Class
B Directors
|
Xxxxxx
X. Xxxxx
Xxxxxx
X. Xxxxxxx
___________________
|
|
|
Class
C Directors
|
Xxxxxx
X. Xxxxxx
C.
Xxxxxx XxXxxxxx
__________________
|
(1)
A
Target Group Designee.
(2)
An At
Large Designee.
2
(d) Neither
the Stockholders, nor any of the officers, directors, stockholders, members,
managers, partners, employees or agents of any Stockholder, makes any
representation or warranty as to the fitness or competence of any Target Group
Designee or At Large Designee (collectively the “Director
Designees”)
to
serve on the Board by virtue of such party's execution of this Agreement or
by
the act of such party in designating or voting for such Director Designee
pursuant to this Agreement.
(e) Any
Director Designee may be removed from the Board in the manner allowed by law
and
FAAC’s governing documents except that (i) the members of the Target Group will
not vote their Shares for the removal of an At Large Designee absent the written
approval of the members of the Founders Group and (ii) the members of the
Founders Group will not vote their Shares for removal of a Target Group Designee
absent the written approval of the members of the Target Group.
1.2 Board
Observation Rights.
To the
extent applicable and appropriate, each Stockholder will vote such Stockholder’s
Shares in favor of any proposal by the Board or the FAAC shareholders at large
to grant board observation rights to either or both of C. Xxxxxx XxXxxxxx and/or
Xxxxxx X. Xxxxx in the event that neither C. Xxxxxx XxXxxxxx or Xxxxxx X. Xxxxx
are then directors of FAAC.
1.3 Vote
in Favor of Certain Officers.
To the
extent applicable and appropriate, each Stockholder will vote such Stockholder’s
Shares in favor of the following individuals to hold the following corporate
offices:
|
Xxxxxx
X. Xxxxx
|
Chairman
of the Board of Directors
|
|
|
C.
Xxxxxx XxXxxxxx
|
Vice
Chairman of the Board of Directors
|
|
|
Xxxxxx
X. Xxxxxx
|
Chief
Executive Officer
|
|
|
Xxxxxx
X. Xxxxxxxxx
|
President
/ Chief Operating Officer
|
|
1.4 Obligations
of FAAC.
FAAC
shall take all necessary and desirable actions within its control (a) to provide
for the Board to be comprised of nine members and to enable the election of
the
Director Designees to the Board in accordance with this Agreement, (b) to enable
the appointment of those individuals referenced in Section 1.3 to the offices
indicated in Section 1.3 and (c) to cause and permit C. Xxxxxx XxXxxxxx and/or
Xxxxxx X. Xxxxx to serve as an advisor to the Board of Directors and to attend
and observe meetings of the Board pursuant to Section 1.4.
1.5 Term
of Agreement.
This
Agreement shall terminate immediately following the election or re-election
of
directors at the annual meeting of FAAC that will be held in 2008.
1.6 Obligations
as Director and/or Officer.
Nothing
in this Agreement shall be deemed to limit or restrict any director or officer
of FAAC from acting in his or her capacity as such director or officer or from
exercising his or her fiduciary duties and responsibilities, it being agreed
and
understood that this Agreement shall apply to each Stockholder solely in his
or
her capacity as a stockholder of FAAC and shall not apply to his or her actions,
judgments or decisions as a director or officer of FAAC if he or she is such
a
director or officer.
3
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES;
COVENANTS
OF THE STOCKHOLDERS
Each
Stockholder hereby severally represents warrants and covenants as follows for
himself, herself or itself, but for no other Person:
2.1 Authorization.
Such
Stockholder has full legal capacity and authority to enter into this Agreement
and to carry out such Stockholder's obligations hereunder. This Agreement has
been duly executed and delivered by such Stockholder, and (assuming due
authorization, execution and delivery by FAAC and the other Stockholders) this
Agreement constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms.
2.2 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder will not,
(i) to
the
extent applicable, conflict with or violate any provision of the certificate
or
articles of organization or operating agreement the Stockholder;
(ii) to
the
extent applicable, result in the creation of, or require the creation of, any
Lien upon any (A) equity interest or (B) property of the
Stockholder;
(iii) result
in
(A) the termination, cancellation, modification, amendment, violation, or
renegotiation of any contract, agreement, indenture, instrument, or commitment,
or (B) the acceleration or forfeiture of any term of payment;
(iv) give
any
Person the right to (A) terminate, cancel, modify, amend, vary, or renegotiate
any contract, agreement, indenture, instrument, or commitment, or (B) to
accelerate or forfeit any term of payment; or
(v) violate
any Law applicable to the Stockholder or by which such Stockholder’s properties
are bound or affected.
(b) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act, and (ii) where the failure
to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or materially delay the performance
by such Stockholder of such Stockholder's obligations under this
Agreement.
2.4 Title
to Shares.
Such
Stockholder is the legal and beneficial owner of its Shares, or will be the
legal and beneficial owner of the Shares that such Stockholder will receive
as a
result of the Acquisition Transaction, free and clear of all liens and other
encumbrances except certain restrictions upon the transfer of such
Shares.
4
ARTICLE
III
GENERAL
PROVISIONS
3.1 Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by overnight courier service, by telecopy,
or by
registered or certified mail (postage prepaid, return receipt requested) to
the
respective parties at the following addresses (or at such other addresses as
shall be specified by notice given in accordance with this Section
3.1):
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(a)
If to FAAC:
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||
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Attn:
Xxxxxx X. Xxxxx, Chairman of the Board
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|
0000
Xxxxx Xxxxxxx Xxxxx
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Xxxxx
0000
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Xxxxxxxxx,
Xxxxxxxx 00000
|
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Fax:
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With
a copy to:
|
Xxxxx
X. Xxxxxxx
|
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|
Squire,
Xxxxxxx & Xxxxxxx L.L.P.
|
||
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0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
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||
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Xxxxxx
Xxxxxx, XX 00000-0000
|
||
|
Fax:
(000) 000-0000
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||
| (b) If to any Stockholder, to the address set forth opposite his, her or its name on Exhibit A. | ||
3.2 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
3.3 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the
extent possible.
3.4 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between the parties,
or any of them, with respect to the subject matter hereof. This Agreement may
not be amended or modified except in an instrument in writing signed by, or
on
behalf of, the parties hereto.
3.5 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event that
any
provision of this Agreement was 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 at law or in equity.
5
3.6 Governing
Law.
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.
3.7 Disputes.
All
actions and proceedings arising out of or relating to this Agreement shall
be
heard and determined exclusively in any state or federal court in Delaware.
3.8 No
Waiver.
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
3.9 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
3.10
Waiver
of Jury Trial.
Each of
the parties hereto irrevocably and unconditionally waives all right to trial
by
jury in any action, proceeding or counterclaim (whether based in contract,
tort
or otherwise) arising out of or relating to this Agreement or the Actions of
the
parties hereto in the negotiation, administration, performance and enforcement
thereof.
3.11
Shares
subject to General Indemnity Escrow Agreement.
Notwithstanding anything to the contrary contained in this Agreement, the
undersigned acknowledge and agree that pursuant to the terms of the Membership
Interest Purchase Agreement, certain of the Common Stock received by Xxxxxx
and
Xxxxxxxxx respectively have been deposited in either (i) a General Indemnity
Escrow the “General
Indemnity Escrow”)
under
the terms of a General Indemnity Escrow Agreement dated as of the date hereof,
or (ii) a Balance Sheet Escrow (the “Balance
Sheet Escrow”)
pursuant to the terms of Balance Sheet Escrow Agreement dated as of the date
hereof. The undersigned further acknowledge and agree that this Agreement shall
not apply to any Common Shares owned by either Xxxxxx or Xxxxxxxxx that are
then
held in either the General Indemnity Escrow or Balance Sheet Escrow and that
this Agreement shall only apply to those Common Shares after the Common Shares
are released to Xxxxxx, or Xxxxxxxxx as the case may be from the General
Indemnity Escrow or the Balance Sheet Escrow as applicable.
6
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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a
Delaware corporation
|
|
|
By:/s/
Xxxxxx X. Xxxxx
|
|
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Name:
Xxxxxx X. Xxxxx
|
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Title:
Chairman
|
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STOCKHOLDERS:
|
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THE
FOUNDERS GROUP:
|
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/s/
C. Xxxxxx XxXxxxxx
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C.
Xxxxxx XxXxxxxx
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/s/
Xxxxxx X. Xxxxx
|
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Xxxxxx
X. Xxxxx
|
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THE
TARGET GROUP:
|
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/s/
Xxxxxx X. Xxxxxx
|
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Xxxxxx
X. Xxxxxx
|
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/s/
Xxxxxx X. Xxxxxxxxx
|
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Xxxxxx
X. Xxxxxxxxx
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7
