VOTING AGREEMENT
Exhibit 1
This VOTING AGREEMENT, dated as of November 10, 2009 (this “Agreement”), is by and among Xxxxx
X. Xxxxxxxxx (“Xxxxxxxxx”), Xxxxxxx X. Xxxxxxx (“Xxxxxxx”), Xxxxx Xxxx (“Xxxx”), Blue Moon Energy
Partners, LLC, a Florida limited liability company (“Blue Moon”) and R & R Consulting Partners,
LLC, a Florida limited liability company (“R&R” and together with Xxxxxxx, Xxxx and Blue Moon,
collectively, the “Parties”).
Recitals
WHEREAS, Xxxxxxxxx desires to acquire at least 50% of the voting power of PositiveID
Corporation, a Delaware corporation (the “Company”), for the election of directors.
WHEREAS, R&R directly owns 5,355,556 shares of common stock of the Company (the “R&R Shares”),
Xxxxxxx directly owns 1,021,519 shares of common stock of the Company (the “Xxxxxxx Shares”), Xxxx
directly owns 700,000 shares of common stock of the Company (the “Xxxx Shares”), and Blue Moon
directly owns 1,285,000 shares of common stock of the Company (the “Blue Moon Shares” and together
with the R&R Shares, Xxxxxxx Shares, and Xxxx Shares, collectively, the “Shares”).
WHEREAS, the Parties each desire to enter into this Agreement to give Xxxxxxxxx the power to
vote, or direct the voting of, the Shares and Xxxxxxxxx desires to vote, or direct the voting of,
the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, Xxxxxxxxx and the Parties hereby agree
as follows:
Terms and Conditions
1. Agreement to Vote.
(a) Until December 31, 2010, each of the Parties hereby agrees that it/he shall, at any
meeting of the stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting), however called, or in connection with any written consent of the
stockholders of the Company (i) when a meeting is held, appear at such meeting or otherwise cause
the Shares to be counted as present thereat for the purpose of establishing a quorum and (ii) vote
or consent (or caused to be voted or consented) in person or by proxy all of the Shares, with
respect to any matter presented to the stockholders of the Company, in accordance with any
instructions received from Xxxxxxxxx.
(b) EACH OF THE PARTIES HEREBY GRANTS TO, AND APPOINTS, XXXXXXXXX, AND ANY OTHER DESIGNEE OF
XXXXXXXXX, AND EACH OF THEM INDIVIDUALLY, THE PARTIES’ IRREVOCABLE PROXY AND ATTORNEY-IN-FACT (WITH
FULL POWER OF SUBSTITUTION) TO VOTE THE SHARES AS INDICATED IN CLAUSE (A) OF THIS SECTION 1. EACH
OF THE PARTIES INTENDS THIS PROXY TO BE IRREVOCABLE AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH
FURTHER ACTION AND EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF
THIS PROXY AND HEREBY REVOKE ANY PROXY PREVIOUSLY GRANTED BY THE PARTIES WITH RESPECT TO THE
SHARES.
2. No Inconsistent Agreements. Each of the Parties hereby covenants and agrees that,
except as contemplated by this Agreement, it/he (a) has not entered into, and shall not enter into
at any time while this Agreement remains in effect, any voting agreement or voting trust with
respect to the Shares and (b) has not granted, and shall not grant at any time while this Agreement
remains in effect, a proxy or power of attorney with respect to the Shares, in either case, which
is inconsistent with their obligations pursuant to this Agreement.
3. Representations and Warranties of the Parties. Each of the Parties hereby
represents and warrants to Xxxxxxxxx as follows:
(a) Ownership of Securities.
(i) As of the date of this Agreement, (i) R&R directly owns the R&R Shares, (ii) R&R is,
directly or indirectly, the sole record holder of the R&R Shares, free and clear of all liens or
encumbrances (other than encumbrances created by those certain Stock Loan Agreements dated as of
September 29, 2009, October 8, 2009, October 21, 2009, and any additional Stock Loan Agreements
that are entered into, from time to time, between R&R and Optimus Capital Partners, LLC, a Delaware
limited liability company (collectively, the “Stock Loan Agreements”)) and (iii) R&R, directly or
indirectly, has sole voting power with respect to all R&R Shares, with no restrictions (other than
those created by this Agreement and the Stock Loan Agreements), subject to applicable state or
federal securities laws on their rights of disposition pertaining thereto. Nothing herein shall
require any purchaser of R&R Shares to vote the R&R Shares in accordance with this Agreement. R&R
has not appointed or granted any proxy that is still in effect with respect to the R&R Shares.
(ii) As of the date of this Agreement, (i) Xxxxxxx directly owns the Xxxxxxx Shares, (ii)
Xxxxxxx is, directly or indirectly, the sole record holder of the Xxxxxxx Shares, free and clear of
all liens or encumbrances and (iii) Xxxxxxx, directly or indirectly, has sole voting power with
respect to all Xxxxxxx Shares, with no restrictions (other than those created by this Agreement),
subject to applicable state or federal securities laws on their rights of disposition pertaining
thereto. Nothing herein shall require any purchaser of Xxxxxxx Shares to vote the Xxxxxxx Shares in
accordance with this Agreement. Xxxxxxx has not appointed or granted any proxy that is still in
effect with respect to the Xxxxxxx Shares.
(iii) As of the date of this Agreement, (i) Xxxx directly owns the Xxxx Shares, (ii) Xxxx is,
directly or indirectly, the sole record holder of the Xxxx Shares, free and clear of all liens or
encumbrances and (iii) Xxxx, directly or indirectly, has sole voting power with respect to all Xxxx
Shares, with no restrictions (other than those created by this Agreement), subject to applicable
state or federal securities laws on their rights of disposition pertaining thereto. Nothing herein
shall require any purchaser of Xxxx Shares to vote the Xxxx Shares in accordance with this
Agreement. Xxxx has not appointed or granted any proxy that is still in effect with respect to the
Xxxx Shares.
(iv) As of the date of this Agreement, (i) Blue Moon directly owns the Blue Moon Shares, (ii)
Blue Moon is, directly or indirectly, the sole record holder of the Blue Moon Shares, free and
clear of all liens or encumbrances and (iii) Blue Moon, directly or indirectly, has sole voting
power with respect to all Blue Moon Shares, with no restrictions (other than those created by this
Agreement), subject to applicable state or federal securities laws on their rights of disposition
pertaining thereto. Nothing herein shall require any purchaser of Blue Moon Shares to vote the Blue Moon Shares in accordance with this Agreement. Blue Moon has not appointed or granted any
proxy that is still in effect with respect to the Blue Moon Shares.
(b) Existence, Power; Binding Agreement. Each of R&R and Blue Moon is duly organized,
formed or created, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions contemplated hereby, and all
necessary corporate or other entity action on behalf of R&R and Blue Moon have been taken to
authorize this Agreement to be entered into on behalf of and to be performed by R&R and Blue Moon.
This Agreement has been duly and validly executed and delivered by the Parties and, assuming due
authorization, execution and delivery by Xxxxxxxxx, constitutes a legal, valid and binding
obligation of the Parties, enforceable against the Parties in accordance with its terms, except as
limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws relating to creditors’ rights generally and (b) general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
(c) No Conflicts. Except for the applicable requirements of the Securities Exchange
Act of 1934, as amended, (i) no filing with, and no permit, authorization, consent or approval of,
any state, federal or foreign governmental authority is necessary on the part of the Parties for
the execution and delivery of this Agreement by the Parties and the consummation by the Parties of
the transactions contemplated hereby and (ii) none of the execution and delivery of this Agreement
by the Parties, the consummation by the Parties of the transactions contemplated hereby or
compliance by the Parties with any of the provisions hereof will (A) result in any breach or
violation of, or constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a lien on any property or asset of the Parties
pursuant to, any contract to which any of the Parties is a party or by which any property or asset
of the Parties is bound or affected or (B) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Parties or any of its/his properties or assets, except in the
case of (A) or (B) for violations, breaches or defaults that would not in the aggregate materially
impair the ability of the Parties to perform its/his obligations hereunder.
4. Certain Covenants. Each of the Parties hereby covenant and agree, while this
Agreement is in effect pursuant to Section 1(a) hereof, to promptly notify Xxxxxxxxx of the number
of any new shares of the Company’s common stock that each of the Parties acquires actual ownership
of after the date hereof, and that any such shares of common stock shall be treated like the Shares
hereunder.
5. Further Assurances. From time to time, at the other party’s request and without
further consideration, each party hereto shall take such reasonable further action as may
reasonably be necessary or desirable to consummate and make effective the transactions contemplated
by this Agreement.
7. Amendment. Any term of this Agreement may be amended, terminated or waived only
with the written consent of Xxxxxxxxx and the Parties. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not
alternative.
8. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual
receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic
mail or facsimilie during normal business hours of the recipient, and if not sent during normal
business hours, then on the recipient’s next business day, or (c) one (1) business day after
deposit with an internationally recognized overnight courier, freight prepaid, specifying next
business day delivery, with written verification of receipt. All communications shall be sent to
the respective parties at their address as set forth in this Section 8, or to such electronic mail
address, facsimile number or address as subsequently modified by written notice given in accordance
with this Section 8. If notice is given to Xxxxxxxxx or R&R by electronic mail it shall be sent to
xxxxxxxxxx@xxxxxxxxxxxx.xxx, if given to Xxxxxxx or Blue Moon by electronic mail it shall be sent
to xxxxxxxx@xxxxxxxxxxxx.xxx, and if given to Xxxx by electronic mail it shall be sent to
xxxxxxxxx@xxx.xxx. If notice is given by mail to Xxxxxxxxx or any of the Parties, it shall be sent
to VeriChip Corporation, 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxx 00000.
9. Severability. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision.
10. Entire Agreement; Assignment. This Agreement (a) constitutes the full and entire
understanding and agreement between the parties with respect to the subject matter hereof, and any
other written or oral agreement relating to the subject matter hereof existing between the parties
are expressly canceled and (b) shall not be assigned by operation of law or otherwise.
11. Specific Performance. The parties agree that irreparable damage would occur 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 parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition to any other remedy
to which they are entitled at law or in equity.
12. Governing Law. This Agreement and any controversy arising out of or relating to
this Agreement shall be governed by and construed in accordance with the laws of the State of
Florida without regard to conflict of law principles that would result in the application of any
law other than the law of the State of Florida.
13. Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
14. Counterparts. This Agreement may be executed and delivered by facsimile signature
and in two (2) or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(Remainder of page intentionally left blank; signature page follows)
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first
written above.
| /s/ Xxxxx X. Xxxxxxxxx | ||||
| Xxxxx X. Xxxxxxxxx | ||||
| /s/ Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| /s/ Xxxxx Xxxx | ||||
| Xxxxx Xxxx | ||||
| R & R Consulting Partners, LLC | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Managing Member | |||
| Blue Moon Energy Partners, LLC | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Manager | |||
