Exhibit 10.15
VOTING
AGREEMENT
THIS VOTING
AGREEMENT (this “Agreement”
) is entered into as of September 13, 2008, by and among
RENAISSANCE ACQUISITION CORP., a Delaware corporation (
“Parent” ), FCI MERGER SUB I, INC., a Delaware
corporation and wholly-owned subsidiary of Parent (
“Merger Sub I” ), FCI MERGER SUB II, LLC, a
Delaware limited liability company and wholly owned subsidiary of
Parent ( “Merger Sub II” , and, together with
the Merger Sub I, collectively, the “Merger
Subs” ) First Communications, Inc., a Delaware
corporation (the “Company” ) and the holders of
at least 75% of the outstanding Company Common Stock (as defined
below) entitled to vote for the delisting of the Company’s
Common Stock from the Alternative Investment Market (
“AIM” ) as regulated by the London Stock
Exchange (collectively, the “Majority Holders”
). Such Majority Holders and their number of shares and
percentage interests are listed on Exhibit A to this
Agreement. All capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement (as
defined below).
Background
A.
Simultaneously herewith, Parent,
Merger Subs, the Company and the Stockholders’ Representative
are entering into an Agreement and Plan of Merger (the
“Merger Agreement” ), providing for a business
combination of Parent and the Company by means of (i) the merger
(the “First Merger” ) of Merger Sub I with and
into the Company, with the Company continuing as the surviving
corporation of the First Merger (the “First Merger
Surviving Corporation” ), and (ii) immediately following
the effectiveness of the First Merger, and as part of the same plan
of merger and reorganization, the merger (the “Second
Merger” and, together with the First Merger,
collectively, the “Mergers” ) of the First
Merger Surviving Corporation with and into Merger Sub II, with
Merger Sub II continuing as the surviving entity of the Second
Merger (the “Second Merger Surviving Entity”
).
B.
Pursuant to the terms and conditions
of the Merger Agreement, prior to the consummation of the
transactions contemplated thereby, the Company and its shares of
Company Common Stock shall be delisted from AIM and pursuant to the
rules and regulations of AIM and the Amended and Restated
Certificate of Incorporation of the Company dated June 28, 2007,
the Company shall provide notice of a general meeting of
stockholders called for the purpose of delisting the Company and
its Company Common Stock to all Company stockholders and obtain the
approval of the holders of at least 75% of the issued and
outstanding shares of Company Common Stock present and voting at
such general meeting.
C.
As of the date hereof, the Majority
Holders, directly own of record and beneficially 20,911,001 shares
of common stock, par value $0.001 per share of the Company (
“Company Common Stock” ), representing at least
75% of the issued and outstanding shares of Company Common Stock.
The shares of Company Common Stock held by the Majority
Holders, together with any shares of Company Common Stock acquired
by the Majority Holders after the date hereof and prior to the
Expiration Date (as defined in Section 7 below) of this Agreement,
shall sometimes be referred to herein as the
“Stock” .
D.
As a condition to Parent and Merger
Subs’ willingness to enter into the Merger Agreement and in
reliance upon the representations, warranties, covenants and
agreements of the Majority Holders hereunder, Parent and Merger
Subs have required that the Majority Holders agree, and the
Majority Holders have agreed, to enter into this
Agreement.
Terms
NOW, THEREFORE, in
exchange for the mutual promises contained herein, and other good
and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1.
Agreement to Vote . Prior to the Expiration
Date (as defined in Section 7 below), each Majority Holder (solely
in such Majority Holders’ capacity as a stockholder of the
Company) hereby agrees that at a special meeting of the
stockholders called for the purpose of approving the delisting of
the Company Common Stock from AIM, such Majority Holder shall vote
all shares of Company Common Stock held by such Holder in favor of
delisting the Company Common Stock from AIM.
2.
Grant of Irrevocable Proxy . Each Majority
Holder hereby grants to Parent, or any nominee of Parent with full
power of substitution, an irrevocable proxy in the form attached
hereto as Exhibit B , to vote, at any time prior to the
Expiration Date, all shares of the Company Common Stock held by
such Majority Holder. Each Majority Holder intends this proxy
to be irrevocable and coupled with an interest and shall take such
further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
3.
Restrictions on Transfer of Stock .
(a)
No Sales . Each Majority Holder agrees, prior to the
Expiration Date, that it shall not contract to sell, sell, or
otherwise transfer or dispose of any shares of Company Common Stock
or any interest therein or any voting rights with respect to
Company Common Stock, unless the transferee thereof agrees in
writing to be bound by the terms of thisAgreement and delivers a
proxy in the form attached hereto as Exhibit B .
(b)
No Authorization of Transfers . In furtherance of the
foregoing, each Majority Holder hereby authorizes and instructs the
Company to decline to make any transfer of shares of Company Common
Stock if such transfer would constitute a violation or breach of
the provisions of this Section 3.
4.
Obligations of the Company . For the special
meeting of the stockholders calling for the vote of the delisting
of the Company and its Company Common Stock from AIM, the Company
shall give Parent written notice setting forth the date, time and
place of the special meeting which shall not be less than ten (10)
nor more than sixty (60) days prior to such meeting. If,
pursuant to the rules and regulations of AIM, the Company is
permitted to obtain the written consent of 75% of the stockholders
to approve the delisting of the Company and the Company Common
Stock, instead of calling a special meeting, then the Company shall
use its reasonable best efforts to obtain this affirmative written
consent.
5.
Waiver of Appraisal Rights . To the
extent permitted by applicable law, each Majority Holder hereby
waives any rights of appraisal or rights to dissent from the
Mergers that it may have under applicable law.
6.
Action in Stockholder Capacity Only .
Parent acknowledges and agrees that each Majority Holder is
executing this Agreement solely in such Majority Holder’s
capacity as a stockholder of the Company and that no provision of
this Agreement shall limit or otherwise restrict a Majority Holder
with respect to any act or omission that such Majority Holder may
undertake or authorize in his or her capacity as a director of the
Company, including, without limitation, any vote that such Majority
Holder may make as a director of the Company with respect to any
matter presented to the Board of Directors of the
Company.
7.
Expiration Date . This Agreement and the
parties’ obligations provided herein shall terminate on the
first to occur of (a) such date and time as the Merger Agreement is
validly terminated in accordance with Article XI thereof or (b)
following the special meeting of stockholders called for the
purpose of delisting the Company and the Company Common Stock from
AIM (the “ Expiration Date ”).
8.
Representations and Warranties of Majority Holders .
Each Majority Holder, severally as to itself but not jointly,
hereby represents and warrants to Parent and Merger Subs as
follows:
(a)
Organization of Each Majority Holder . Each Majority
Holder who is not a natural person, is an entity, duly organized or
formed, validly existing and in good standing under the laws of the
state of its incorporation or formation.
(b)
Authority; Due Execution and Delivery . Each Majority
Holder has the full corporate, limited partnerhip, limited
liability partnership or limited liability company power and
authority to enter into this Agreement and to perform its
obligations hereunder. All necessary corporate, limited
partnerhip, limited liability partnership or limited liability
company action has been taken to authorize each Majority Holder to
execute and deliver this Agreement and this Agreement constitutes
the legal, valid and binding obligation of such Majority Holder,
enforceable against each of them in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other Laws of general application affecting
enforcement of creditors’ rights.
(c)
Noncontravention . Neither the execution nor the
delivery of this Agreement by the Majority Holders, nor the
consummation of the transactions contemplated hereby, will: (i)
violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of
any applicable Law or any injunction, judgment, order, decree,
ruling change or other restriction of any Governmental Authority to
which the Majority Holder is subject or, if the Majority Holder is
not an individual, any provision of the certificate of
incorporation or formation or bylaws or operating agreement of the
Majority Holder or any other governing instrument, as amended, or
(ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any person the
right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument,
or other arrangement to which the Majority Holder is a party or by
which it is bound or to which any of its assets is subject (or
result in the imposition of any security interest upon any of the
shares of Company Common Stock).
(d)
Ownership of Stock . Exhibit A accurately sets
forth all of the authorized, issued and outstanding shares of
Company Common Stock held by such Majority Holder. Such
Majority Holder is the sole legal record and beneficial owner of
such shares of Company Common Stock and such shares constitute all
of the shares of Company Common Stock owned by such Majority
Holder. Such Majority Holder has sole voting power and sole
power of disposition with respect to all of the Company Common
Stock held by it, with no restrictions or outstanding
subscriptions, options, warrants, rights, pledges, calls, puts or
rights of any kind relating to the shares, subject to applicable
federal securities laws, on such Majority Holder’s rights of
disposition pertaining thereto. There are no agreements of
any kind providing for the transfer, voting, disposition or
acquisition of any of such Majority Holder’s shares of Common
Stock.
9.
Representations and Warranties of Parent and Merger
Subs . Parent and the Merger Subs, jointly and
severally, represent and warrant to the Majority Holders as
follows:
(a)
Organization of Parent and the Merger Subs . Each of
Parent and Merger Sub I is a cor
