PROXY VOTING AGREEMENT (McMillen/Rockwell)
(▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇)
THIS
PROXY VOTING AGREEMENT
(this
“Agreement”)
is
made effective as of June 8, 2007 (the “Effective
Date”),
by
and between C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”),
an
individual and a Member of Fortress America Holdings, LLC (“Fortress”)
and S.
▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual (“Rockwell”).
RECITALS:
WHEREAS,
▇▇▇▇▇▇▇▇, Fortress and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇▇▇▇”)
entered into that certain Operating Agreement of Fortress, effective as of
June
8, 2007, whereby the parties thereto set forth their agreements regarding the
governance and operation of Fortress; and
WHEREAS,
Fortress was formed with the purpose of serving as the managing member of
Fortress America Acquisition Holdings, LLC, a Delaware limited liability company
(“FAAH”);
and
WHEREAS,
Fortress holds 23,600 FAAH Class B membership units, or one percent (1%) of
the
total number of FAAH membership units issued and outstanding as of the effective
date hereof; and
WHEREAS,
FAAH
was formed with the purpose of investing in Fortress America Acquisition
Corporation II (“FAAC
II”),
a
blank check company organized under the laws of the State of Delaware; and
WHEREAS,
FAAC II
was formed with the purpose of acquiring, through a merger, capital stock
exchange, asset acquisition, stock purchase or other similar business
combination, one (1) or more operating businesses in the homeland security
industry (a “Business
Combination”);
and
WHEREAS,
FAAH
has purchased insider shares (the “Founder
Shares”)
of
FAAC II’s common stock, par value $0.0001 per share; and
WHEREAS,
FAAC II
has twenty-four (24) months from the effective date of its initial public
offering pursuant to that certain registration statement on Form S-1 to
consummate a Business Combination or its corporate existence will cease by
operation of law; and
WHEREAS,
the
Founder Shares will be placed in an escrow account and will not be transferable
or salable (except under limited conditions) until released from escrow in
accordance with those terms and conditions set forth in an escrow agreement,
by
and among FAAH, FAAC II and Continental Stock Transfer & Trust Company, as
escrow agent (the “Founder
Shares Escrow Agreement”);
such
release date shall be referred to herein as the “Escrow
Shares Release Date”;
and
WHEREAS,
the
Escrow Shares Release Date shall not occur prior to one (1) year following
the
consummation of a Business Combination or earlier if, following the consummation
of a Business Combination, FAAC II consummates a transaction after the Business
Combination which results in all of the stockholders of the combined entity
having the right to exchange their shares of FAAC II Common Stock for cash,
securities or other property; and
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WHEREAS,
All
FAAH members are entitled to receive Founder Shares upon the occurrence of
a
Founder Share Distribution (as defined below), at which time FAAH shall
distribute, transfer and deliver the Founder Shares to its members (including,
without limitation, to ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and Fortress) in proportion to their
respective number of membership units of FAAH owned by each FAAH member;
and
WHEREAS,
a
“Founder
Share Distribution”
shall
occur upon the earlier of: (i) thirty (30) days following the effective date
of
a registration statement covering the Founder Shares and (ii) one hundred twenty
(120) days following the Escrow Shares Release Date; and
WHEREAS,
FAAH
shall distribute to all of its members (including, without limitation, to
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and Fortress), and its members shall be entitled to receive
from
FAAH, the Founder Shares in accordance with the terms and conditions set forth
in FAAH’s operating agreement and in the Founder Shares Escrow Agreement; and
WHEREAS,
▇▇▇▇▇▇▇▇ is the beneficial owner of fifty percent (50%) of the membership units
of Fortress; and
WHEREAS,
▇▇▇▇▇▇▇▇ desires to grant to Rockwell, and Rockwell desires to receive from
▇▇▇▇▇▇▇▇, an irrevocable proxy to vote fifty-one percent (51%) of his membership
units in Fortress (the “Voting
Units”)
in
accordance with the terms set forth herein below.
AGREEMENT:
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto covenant and agree as follows:
1. Irrevocable
Proxy.
By
execution of this Agreement, ▇▇▇▇▇▇▇▇ does hereby appoint and constitute
Rockwell, until the Expiration Date (as defined in Section 2 below), with full
power of substitution and resubstitution, as ▇▇▇▇▇▇▇▇’▇ true and lawful attorney
and irrevocable proxy, to the full extent of the undersigned’s voting rights
with respect to the Voting Units. ▇▇▇▇▇▇▇▇
intends this proxy to be irrevocable until the Expiration Date.
2. Expiration
Date.
This
Agreement shall terminate and shall have no further force or effect upon a
Founder Share Distribution (the “Expiration
Date”).
3. Amendments
and Modifications.
This
Agreement may not be modified, amended, altered or supplemented except upon
the
execution and delivery of a written agreement executed by the parties
hereto.
4. Specific
Performance; Injunctive Relief.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof or was otherwise breached. It is accordingly agreed that the parties
shall be entitled to specific relief hereunder, including, without limitation,
an injunction or injunctions to prevent and enjoin breaches of the provisions
of
this Agreement and to enforce specifically the terms and provisions hereof,
in
any State or Federal court in the State of Virginia, in addition to any other
remedy to which they may be entitled at law or in equity. Any requirements
for
the securing or posting of any bond with respect to any such remedy are hereby
waived.
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5. Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and sufficient if delivered in person, by cable, telegram or
facsimile (with confirmation of receipt), or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight courier
(prepaid) to the respective parties as follows:
|
If
to ▇▇▇▇▇▇▇▇:
|
C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
If
to Rockwell:
|
S.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
( ) _____________
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or
to
such other address as any party may have furnished to the other in writing
in
accordance herewith, except that notices of change of address shall be effective
upon receipt.
6. Governing
Law; Jurisdiction and Venue.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of Virginia without regard to its rules of conflict of laws.
The parties hereto hereby irrevocably and unconditionally consent to and submit
to the exclusive jurisdiction of any state or federal court sitting in Fairfax
County, Virginia for any litigation arising out of or relating to this Agreement
and the transactions contemplated hereby (and agree not to commence any
litigation relating thereto except in such courts), waive any objection to
the
laying of venue of any such litigation in the Fairfax County, Virginia courts
and agree not to plead or claim in any Fairfax County, Virginia court that
such
litigation brought therein has been brought in any inconvenient forum.
7. Entire
Agreement.
This
Agreement contains the entire understanding of the parties in respect of the
subject matter hereof, and supersedes all prior negotiations and understandings
between the parties with respect to such subject matter.
8. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
agreement.
9. Effect
of Headings.
The
section headings herein are for convenience only and shall not affect the
construction of interpretation of this Agreement.
10. Recitals.
The
Recitals herein above are hereby incorporated into this Agreement as if fully
stated herein.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the Effective
Date.
| C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual | ||
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| By: | /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Name: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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S.
▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual
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| By: | /s/ S. ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Name: S. ▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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