VOTING AGREEMENT
THIS
VOTING AGREEMENT (“
Agreement ”)
is made this 19
th day
of January, 2007 by and among THOMAS P. ROSATO (“
Rosato ”),
GERARD J. GALLAGHER (“
Gallagher ”
and together with Rosato the “
Target Group ”),
C. THOMAS MCMILLEN (“
McMillen ”),
HARVEY L. WEISS (“
Weiss ”
and together with McMillen 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.
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
|
Gerard
J. Gallagher
David
J. Mitchell
__________________
|
| |
Class
B Directors
|
Harvey
L. Weiss
Donald
L. Nickles
___________________
|
| |
Class
C Directors
|
Thomas
P. Rosato
C.
Thomas McMillan
__________________
|
(1)
A Target Group Designee.
(2)
An At Large Designee.
(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. Thomas McMillen and/or
Harvey L. Weiss in the event that neither C. Thomas McMillen or
Harvey L. Weiss 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 th
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