VOTING AGREEMENT
VOTING AGREEMENT, dated as of this __ day of [Closing Date] ("Agreement"),
among each of the persons listed under the caption "Target Group" on Exhibit A
attached hereto (the "Target Group"), each of the persons listed under the
caption "Founders Group" on Exhibit A attached hereto (the "Founders Group") and
Juniper Partners Acquisition Corp., a Delaware corporation ("Parent"). Each of
the Target Group and the Founders Group is sometimes referred to herein as a
"Group". For purposes of this Agreement, each person who is a member of either
the Target Group or the Founders Group is referred to herein individually as a
"Stockholder" and collectively as the "Stockholders".
WHEREAS, each of Parent, Firestone Communications, Inc. (the "Company"), a
Delaware corporation, Firecomm Acquisition, Inc. ("Merger Sub"), a Delaware
corporation, and the Stockholders who are members of the Target Group have
entered into an Agreement and Plan of Merger dated August 15, 2006 (the "Merger
Agreement") that provides, inter alia, upon the terms and subject to the
conditions thereof, for the merger of Merger Sub with and into the Company, with
the Company being the surviving entity and becoming a wholly owned subsidiary of
Parent (the "Merger");
WHEREAS, as of the date hereof, each Stockholder who is a member of the
Founders Group owns beneficially and of record shares of common stock of Parent,
par value $0.0001 per share ("Parent Common Stock"), as set forth opposite such
stockholder's name on Exhibit A hereto (all such shares and any shares of which
ownership of record or 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 referred to herein as the "Shares");
WHEREAS, at the Effective Time, all shares of Company Common Stock
beneficially owned by each Stockholder who is a member of the Target Group shall
be converted into the right to receive and shall be exchanged for his, her or
its pro rata portion of the shares of Parent Common Stock to be issued to the
Company's security holders as consideration in the Merger;
WHEREAS, as a condition to the consummation of the Merger Agreement, the
Stockholders have agreed, severally, to enter into this Agreement; and
WHEREAS, capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING OF SHARES FOR DIRECTORS
SECTION 1.01 Vote in Favor of the Directors. During the term of this
Agreement, each Stockholder agrees to vote the Shares of Parent Common Stock he,
she or it now owns, or will hereafter acquire prior to the termination of this
Agreement, for the election and re-election of the following persons as
directors of Parent:
(a) Three (3) persons, all of whom shall stand for election in 2007
("Class A Directors") and who shall at all times be "independent directors"
within the meaning of the Nasdaq rules, of whom (i) one shall be a designee of
the Target Group, who shall initially be ________, (ii) one shall be a designee
of the Founders Group, who shall initially be ______, and (iii) one shall be
mutually designated by the Target Group and the Founders Group, who shall
initially be __________;
(b) Two (2) persons, all of whom shall stand for election in 2008
("Class B Directors") and who shall at all times be "independent directors"
within the meaning of the Nasdaq rules, of whom (i) one shall be a designee of
the Target Group, who initially shall be _________, and (ii) one shall be a
designee of the Founders Group, who shall initially be ______; and
(c) Two (2) persons, both of whom shall stand for election in 2009
("Class C Directors"), of whom (i) one shall be a designee of the Target Group,
who initially shall be Xxxxxxx X. Xxxxx, who shall serve as Vice Chairman, and
(ii) one shall be a designee of the Founders Group, who shall initially be
Xxxxxx X. Xxxxxx, who shall serve as Chairman.
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 person who is
designated by the Target Group, the Founders Group or mutually by the Target
Group and the Founders Group (each a "Director Designee") to serve on the Board
of Directors 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.
Any Director Designee may be removed from the Board of Directors in the
manner allowed by law and Parent's governing documents except that each
Stockholder agrees that he, she or it will not, as a stockholder, vote for the
removal of any director who is a member of Group of which such Stockholder is
not a member. If a director is removed or resigns from office, the remaining
directors of the Group of which the vacating director is a member shall be
entitled to appoint the successor.
SECTION 1.02 Obligations of Parent. Parent shall take all necessary and
desirable actions within its control during the term of this Agreement to
provide for the Parent Board of Directors to be comprised of seven (7) members
and to enable the election to the Board of Directors of the Director Designees.
2
SECTION 1.03 Term of Agreement. The obligations of the Stockholders
pursuant to this Agreement shall terminate immediately following the election or
re-election of directors at the annual meeting of Parent that will be held in
2009.
SECTION 1.04 Obligations as Director and/or Officer. Nothing in this
Agreement shall be deemed to limit or restrict any director or officer of Parent
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 Parent and shall not apply to his or her
actions, judgments or decisions as a director or officer of Parent if he or she
is such a director or officer.
SECTION 1.05 Transfer of Shares. If a member of the Target Group desires to
transfer his, her or its Shares to a permitted transferee pursuant to the
Lock-Up Agreement of even date herewith executed by such member, or if a member
of the Founders Group desires to transfer his or its shares to a permitted
transferee pursuant to the Escrow Agreement dated as of July __, 2005, it shall
be a condition to such transfer that the transferee agree to be bound by the
provisions of this Agreement. This Agreement shall in no way restrict the
transfer on the public market of Shares that are not subject to the Lock-Up
Agreement or the Escrow Agreement, and any such transfers on the public market
of Shares not subject to the provisions of the Lock-Up Agreement or the Escrow
Agreement, as applicable, shall be free and clear of the restrictions in this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby severally represents warrants and covenants as
follows:
SECTION 2.01 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
Parent 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.
SECTION 2.02 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) conflict with or violate any Legal Requirement applicable to such
Stockholder or by which any property or asset of such Stockholder is bound or
affected, or (ii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of any encumbrance on any property or asset of
such Stockholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
3
(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.
SECTION 2.03 Title to Shares. Such Stockholder is the legal and beneficial
owner of its Shares, or will be the legal beneficial owner of the Shares that
such Stockholder will receive as a result of the Merger, free and clear of all
liens and other encumbrances except certain restrictions upon the transfer of
such Shares.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01 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 3.01):
(a) If to Parent:
Juniper Partners Acquisition Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: 212-398-3275
with a mandatory copy to
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to any Stockholder, to the address set forth opposite his, her
or its name on Exhibit A.
4
SECTION 3.02 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.
SECTION 3.03 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.
SECTION 3.04 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.
SECTION 3.05 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.
SECTION 3.06 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. SECTION 3.07 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.
SECTION 3.08 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.
SECTION 3.09 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.
SECTION 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.
5
SECTION 3.11 Merger Agreement. All references to the Merger Agreement
herein shall be to such agreement as may be amended by the parties thereto from
time to time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
JUNIPER PARTNERS ACQUISITION CORP.
By:
---------------------------------
Title:
STOCKHOLDERS:
THE FOUNDERS GROUP:
----------------------------
----------------------------
THE TARGET GROUP:
----------------------------
----------------------------
----------------------------
6
EXHIBIT A
STOCKHOLDERS
THE FOUNDERS GROUP:
[Name, address and fax number of each person]
THE TARGET GROUP:
[Name, address and fax number of each person]
7
