LOCK-UP AGREEMENT
THIS
LOCK-UP AGREEMENT (this “Agreement”) is entered into as of the 19th day of
January, 2007, by and among Fortress America Acquisition Corporation, formerly
known as Fortress America Acquisition Corporation, a Delaware corporation (the
“Company”),
and
the undersigned parties identified as Stockholders on the signature page hereto
(each, a “Stockholder”
and
collectively, the “Stockholders”).
WHEREAS,
the Stockholders are either (i) parties to the Second
Amended and Restated Membership Interest Purchase Agreement by and among the
Company, VTC, L.L.C., Vortech, LLC, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxx,
dated July 31, 2006, as amended by an Amendment To The Second Amended and
Restated Membership Interest Purchase Agreement dated January 16, 2007 (the
“Purchase
Agreement”)
or (ii)
acquired stock in Company as a direct result of the transactions contemplated
in
the Purchase Agreement;
WHEREAS,
the founding stockholders of the Company (the “Founding
Stockholders”),
in
connection with the Company’s initial public offering (the “IPO”),
agreed to a “lock-up” of their shares of Common Stock until July 13, 2008, being
the third anniversary of the effective date of the IPO, pursuant to the terms
and conditions of that certain Stock Escrow Agreement dated as of July 13,
2005;
WHEREAS,
pursuant to Section 2.2(d)(iv) of the Purchase Agreement and in consideration
of
the transactions contemplated by the Purchase Agreement, the Stockholders and
the Company desire to enter into this Agreement to provide for the “lock-up” up
of the shares of Common Stock issued to the Stockholders as Stock Consideration,
including those shares that may be issued upon conversion of the Convertible
Promissory Note (the “Locked-
Up Common Stock”),
for
the period commencing on the date of this Agreement until July 13, 2008;
and
WHEREAS,
the capitalized terms not otherwise defined in this Agreement shall have the
meanings given to them in the Purchase Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Terms
of Lock-Up.
Each
Stockholder agrees that, from the date of this Agreement until July 13, 2008
(the “Lock-Up
Period”),
he
will not (i) sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to dispose
of, directly or indirectly, or file (or participate in the filing of) a
registration statement with the Securities and Exchange Commission (the
“Commission”)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder with respect to, any Locked-Up Common
Stock or any securities convertible into or exercisable or exchangeable for
Locked-Up Common Stock, or warrants or other rights to purchase Locked-Up Common
Stock, (ii) enter into any swap, derivative transaction or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Locked-Up Common Stock or any securities convertible into or
exercisable or exchangeable for Locked-Up Common Stock, or warrants or other
rights to purchase Locked-Up Common Stock, whether any such transaction is
to be
settled by delivery of Locked-Up Common Stock or such other securities, in
cash
or otherwise, or (iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii). The foregoing restrictions shall not apply
to
any transfer (i) by gift to a member of a Stockholder’s immediate family or to a
trust, the beneficiary of which is a Stockholder or a member of a Stockholder’s
immediate family, (ii) by virtue of the laws of descent and distribution upon
death of any Stockholder, (iii) pursuant to a qualified domestic relations
order, or (iv) to any partner, member or affiliate of any Stockholder organized
as an entity; provided,
however,
that
such permitted transfers may be implemented only upon the respective
transferee’s written agreement to be bound by the terms and conditions of this
Agreement as to the Locked-Up Common Stock.
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2. Transfer
Agent Instructions.
Each
Stockholder hereby authorizes the Company during the Lock-Up Period to cause
the
Company’s transfer agent to decline transfer and/or to note stop transfer
restrictions on the transfer books and records of the Company with respect
any
shares of Locked-Up Common Stock and any securities convertible into,
exercisable for or exchangeable for Locked-Up Common Stock for which such
Stockholder is the record or beneficial holder.
3. Waiver
of Registration Rights.
Each
Stockholder hereby waives any rights to require registration of the Locked-Up
Common Stock during the Lock-Up Period.
4. Assignment.
This Agreement and the rights, duties and obligations of the Stockholders may
only be assigned as set forth in Section 1 of this Agreement. This
Agreement and the provisions hereof shall be binding upon and shall inure to
the
benefit of each of the parties and their respective successors and the permitted
assigns of the Stockholder.
5 Notices.
All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”)
required or permitted to be given hereunder or which are given with respect
to
this Agreement shall be in writing and shall be personally served, delivered
by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to
such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or
transmission if personally served or transmitted by telegram, telex or
facsimile;
provided,
that if
such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business
day. Notice otherwise sent as provided herein shall be deemed given on the
next business day following timely delivery of such notice to a reputable air
courier service with an order for next-day delivery.
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Fortress
America Acquisition Corporation
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0000
Xxxxx Xxxxxxx Xxxxx, #0000
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Xxxxxxxxx,
Xxxxxxxx 00000
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Attention:
Chairman
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with
a copy to:
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Squire,
Xxxxxxx & Xxxxxxx L.L.P.
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0000
Xxxxxx Xxxxxxxx Xxxxx, 00xx
Xxxxx
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Xxxxxx
Xxxxxx, Xxxxxxxx 00000
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Attn:
Xxxxx X. Xxxxxxx, Esq.; and
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To
a Stockholder,:
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to
the addresses listed on Exhibit A hereto.
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6. Severability.
This Agreement shall be deemed severable, and the invalidity or unenforceability
of any term or provision hereof shall not affect the validity or enforceability
of this Agreement or of any other term or provision hereof. Furthermore,
in lieu of any such invalid or unenforceable term or provision, the parties
hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
7. Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall
be
deemed an original, and all of which taken together shall constitute one and
the
same instrument.
8. Entire
Agreement.
This Agreement constitutes the entire agreement of the parties with respect
to
the subject matter hereof and supersedes all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
9. Modifications
and Amendments.
No amendment, modification or termination of this Agreement shall be binding
upon any party unless executed in writing by such party.
10. Waivers
and Extensions.
Any party to this Agreement may waive any right, breach or default which such
party has the right to waive, provided
that
such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
or of any other agreement or provision herein contained. No waiver or
extension of time for performance of any obligations or acts shall be deemed
a
waiver or extension of the time for performance of any other obligations or
acts.
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11. Governing
Law.
This
Agreement shall be governed by, interpreted under, and construed in accordance
with the internal laws of the State of Maryland applicable to agreements made
and to be performed within the State of Maryland, without giving effect to
any
choice-of-law provisions thereof that would compel the application of the
substantive laws of any other jurisdiction.
12. Waiver
of Trial by Jury.
Each party hereby irrevocably and unconditionally waives the right to a trial
by
jury in any action, suit, counterclaim or other proceeding (whether based on
contract, tort or otherwise) arising out of, connected with or relating to
this
Agreement, the transactions contemplated hereby, or the actions of any
Stockholder in the negotiation, administration, performance or enforcement
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have caused this Lock-Up Agreement to be executed
and delivered by their duly authorized representatives as of the date first
written above.
FORTRESS
AMERICA ACQUISITION CORPORATION
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A
Delaware corporation
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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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/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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Evergreen
Capital LLC
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By:
/s/ Xxxxxxx Xxxx, Xx.
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Name:
Xxxxxxx Xxxx, Xx.
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Title:
President
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Exhibit
A
Stockholders:
Xxxxxx
X.
Xxxxxx
00000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Xxxxxx
X.
Xxxxxxxxx
0
Xxxxxxx
Xxxx
Xxxxxxx
Xxxx, XX 00000
Evergreen
Capital, LLC
0000
Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
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