VOTING AGREEMENT
Exhibit 10.72
This Voting Agreement (“Agreement”) is entered into as of April 14, 2008 by and among Irvine
Sensors Corporation, a Delaware corporation (“Irvine” or the “Company”) and the parties whose
signatures are affixed hereto (“Shareholders”), for the benefit of Longview Fund L.P., and Alpha
Capital Anstalt (collectively, “Subscribers”).
WHEREAS, Irvine has entered into a subscription agreement and transaction documents for the
sale of an aggregate of 133,332 Shares of Series A-1 Preferred Stock to Subscribers dated as of
April 14, 2008 (“Subscription Agreement”); and
WHEREAS, pursuant to the provisions of the Subscription Agreement, Irvine covenants and agrees
to diligently attempt to obtain the approval of its stockholders for the Approval as defined in
Section 5(a) of the Subscription Agreement; the contingent reverse split described in Section 5(c);
and the approval of an increase in the Company’s authorized Common Stock, as described in Section
5(e) of the Subscription Agreement (collectively, all of the above being the “Stockholder
Approval”); and
WHEREAS, as of the date hereof, the Shareholders own or exercise voting control over the
number of shares of Irvine’s Common Stock as set forth on Schedule 5(a) to the Subscription
Agreement (“Shares”), a copy of which is annexed hereto; and
WHEREAS, as a condition to Subscribers entering into the Subscription Agreement, Shareholders
have agreed to vote in favor of the Stockholder Approval.
NOW THEREFORE, the parties agree as follows:
1. Agreement to Vote Shares. Each Shareholder agrees that, until the first to occur
of (i) the Preferred Stock is no longer outstanding, or (ii) the Stockholder Approval is obtained,
or (iii) July 31, 2009, such Shareholder shall vote all of the Shares now or hereinafter directly
or indirectly owned (of record or beneficially) and over which Shareholder has voting control in
favor of the Stockholder Approval.
2. Covenants. Each Shareholder agrees with respect to itself and the Shares it owns
that until the next meeting of the Company’s stockholders after the date hereof and any
adjournments thereof at which the components of the Stockholder Approval are presented to the
Company’s stockholders for approval:
(a) It shall not, except consistent with the terms of this Agreement, (i) transfer (which term
shall include, without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of the Shares or any interest
therein, (ii) enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of the Shares or any interest therein, (iii) take any other action
that would in any way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby, or (iv) grant any proxies or powers of attorney
with respect to any of the Shares, deposit any Shares into a voting trust or enter into a voting
agreement with respect to such Shares. Notwithstanding the foregoing, each Shareholder may
transfer its Shares if (i) pursuant to an already existing Rule 10b5-1 plan, or (ii) such
transferee becomes a party to and bound by all of the terms of this Agreement.
(b) It will not enter into any transaction, take any action, or directly or indirectly cause
any event to occur that would result in any of the representations or warranties of each
Shareholder herein contained not being true and correct at and as of the time immediately after the
occurrence of such transaction, action or event.
3. Representations and Warranties. Each Shareholder represents and warrants with
respect to itself and the Shares it owns that:
(a) It is the record or beneficial owner or exercises voting control of the number of Shares
set forth on Schedule 5(a) opposite its name and, except for the Shares, it is not the record or
beneficial owner of any other shares of the Company’s Common Stock.
(b) This Agreement has been duly executed and delivered by each Shareholder and constitutes
the legal, valid and binding obligation of each
Shareholder, enforceable against each Shareholder
in accordance with its terms. Each Shareholder has all necessary power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. Neither the execution and delivery of this Agreement nor the consummation by
each Shareholder of the transactions contemplated hereby will result in a violation of, or a
default under, or conflict with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which each Shareholder is a party or bound or to which
the Shares are subject which would materially impair the ability of each Shareholder to perform
hereunder. Consummation by each Shareholder of the transactions contemplated hereby will not
violate, or require any consent, approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to each Shareholder or the Shares.
(c) The Shares owned by each Shareholder and the certificates representing such Shares are now
and at all times during the term hereof will be held by each Shareholder or by a nominee or
custodian for its benefit, free and clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except
for any such encumbrances or proxies arising hereunder or under applicable securities laws.
4. Certain Events. Each Shareholder agrees that this Agreement and the obligations
hereunder shall attach to the Shares owned by it and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise, including without limitation such person’s heirs, guardians, administrators or
successors. In the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company affecting the Company
Common Stock, or the acquisition of additional shares of Company Common Stock by each
Shareholder, this Agreement and the obligations hereunder shall attach to any additional
shares of Company Common Stock or other voting securities of the Company issued to or acquired
by each Shareholder. In the event of a stock dividend or distribution, or any change in Company
Common Stock by reason of any stock dividend, split-up, recapitalization, combination, exchange of
shares or the like, the term “Shares” shall be deemed to refer to and include the Shares as well as
all such stock dividends and distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged.
5. Specific Enforcement of Voting Agreement. Each Shareholder expressly acknowledges
that damages alone will not be adequate remedy for any breach by each Shareholder of this Agreement
and that the Company, in addition to any other remedies it may have, will be entitled as a matter
of right, to injunctive relief, including specific performance, in any court of competent
jurisdiction with respect to any actual or threatened breach by each Shareholder of the provisions
of this Agreement.
6. Miscellaneous.
(a) All communication under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery) to the parties
at the following addresses (or at such other address for a party as shall be specified by like
notice):
If to the Company, to:
Irvine Sensors Corporation
0000 Xxx Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
0000 Xxx Xxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
With a copy by facsimile only to:
Xxxxxx & Xxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
If to each Shareholder:
To the addresses and fax numbers listed on Schedule A hereto
With a copy by facsimile only to:
Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
(b) 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.
(c) This Agreement constitutes the entire agreement relating to the subject matter covered
herein, and supersedes all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(d) Neither this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by any of the
parties without the prior written consent of the other parties, except that this Agreement shall be
binding upon each Shareholder and its successors and assigns and except as provided in Section
2(a).
(e) The construction and performance of this Agreement will be governed by the laws of the
State of New York, regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
(f) If any term, provision, covenant or restriction herein, or the application thereof to any
circumstance, shall, to any extent, be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions herein
and the application thereof to any other circumstances, shall remain in full force and effect,
shall not in any way be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
(g) Each Shareholder hereby agrees that irreparable damage would occur and that the Company
would not have any adequate remedy at law in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Company shall be entitled to an injunction or injunctions to prevent
breaches by each Shareholder of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court, in addition to any other remedy to which it is entitled at law or
in equity. In addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of New York or any New York state
court in the event any dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees that such party will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court and (iii) agrees that such party will not
bring any action relating to this Agreement or any of the transactions contemplated hereby in
any court other than a Federal court sitting in the State of New York or a New York state court.
(h) No amendment, modification or waiver in respect of this Agreement shall be effective
against any party unless is shall be in writing and signed by such party.
(i) This Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties, it being understood
that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their duly
authorized officers all as of the day and year first above written.
| IRVINE SENSORS CORPORATION |
||||
| By: | /s/ XXXX X. XXXXXX | |||
| Xxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
SHAREHOLDERS
/s/ XXX X. XXXXXXXXX |
||
/s/ XXXX X. XXXXXX |
||
/s/ XXXX XXXXXX |
||
/s/ XXXXXX X. XXXXX |
||
/s/ VOLKAN OZGUZ |
||
/s/ XXXXXXXX XXXX |
||
/s/ XXXXX XXXXXX |
||
/s/ XXXXXX XXXXXXXX |
||
/s/ XXXX X. XXXXXX, XX. |
||
/s/ XXXXX XXXXXXX |
||
/s/ XXXX XXXXXXXX |
||
SCHEDULE 5(a)
| NUMBER OF SHARES | ||||
| SHAREHOLDER | OWNED | |||
Xxxxxx X. Xxxxxxxxx |
244,483 | |||
Xxxx X. Xxxxxx |
1,413,099 | |||
Xxxx Xxxxxx |
105,022 | |||
Xxxxxx X. Xxxxx |
129,483 | |||
Volkan Ozguz |
54,720 | |||
Xxxxxxxx Xxxx |
118,966 | |||
Xxxxx Xxxxxx |
61,833 | |||
Xxxxxx X. Xxxxxxxx |
218,713 | |||
Xxxx X. Xxxxxx, Xx. |
362,811 | |||
Xxxxx Xxxxxxx |
87,310 | |||
Xxxxx Xxxxxxxx |
78,966 | |||
