STOCKHOLDER VOTING AND SUPPORT AGREEMENT
Exhibit 2.2
EXECUTION VERSION
STOCKHOLDER VOTING AND SUPPORT AGREEMENT, dated as of October 17, 2011, between and among
Vectronix Inc., a Delaware corporation (the “Purchaser”), and each of the stockholders
listed on Schedule I hereto (each, a “Stockholder” and collectively, the
“Stockholders”).
WHEREAS, concurrently with the execution of this Agreement, Irvine Sensors Corporation, a
Delaware corporation (the “Company”), and the Purchaser are entering into an Asset Purchase
Agreement of even date herewith (the “APA”) (capitalized terms used but not defined in this
Agreement have the meanings ascribed thereto in the APA);
WHEREAS, as of the date hereof, each Stockholder is the record and sole beneficial owner of
the number of shares (the “Existing Shares”) of Company common stock, par value $.01 per
share (“Common Stock”), as set forth opposite such Stockholder’s name on Schedule I hereto.
The Existing Shares, together with any shares of Common Stock acquired by the Stockholder after
the date of this Agreement, whether upon the exercise of stock options, the conversion or exchange
of any Existing Shares, or by means of any purchase, dividend, distribution or otherwise, are
referred to in this Agreement collectively as the “Subject Shares.”
WHEREAS, as a condition to its willingness to enter into the APA, the Purchaser has required
that each Stockholder enter into this Agreement and, in order to induce the Purchaser to enter into
the APA, each Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good
and valuable consideration, the value, receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Covenants of the Stockholders.
(a) From the date hereof until any termination of this Agreement in accordance with
its terms, at any meeting of the stockholders of the Company however called (or any action
by written consent in lieu of a meeting) or any adjournment thereof, each Stockholder shall
vote all Subject Shares (or cause them to be voted) or (as appropriate) execute written
consents in respect thereof in favor of the adoption of the APA and the approval of the
transactions contemplated by the APA and, if applicable, against each of the following:
(i) any action or omission that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company
under the APA or of the Stockholder under this Agreement;
(ii) any Acquisition Proposal;
(iii) any amendment to the Company’s certificate of incorporation or bylaws,
including any amendment that would authorize any additional shares or classes of
shares of capital stock or change in any manner the rights and privileges,
including voting rights, of any class of the Company’s capital stock;
(iv) any material change in the present capitalization or dividend policy of
the Company;
(v) any material change in the board of directors or senior management of the
Company;
(vi) any material change in the Company’s corporate structure or activities of
the Business; or
(vii) any other plan, transaction, proposal, agreement or arrangement that
could reasonably be expected to impede, interfere with, discourage, prevent, delay,
nullify or postpone any of the transactions contemplated by the APA.
Each Stockholder, in his, her or its capacity as a stockholder of the Company, further
agrees not to commit or agree to take any action inconsistent with the foregoing
agreements.
For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal or
offer from any Person with respect to (A) any sale, lease, exchange, transfer, license,
acquisition or disposition of the Business or any of the properties or assets used or held
for use in connection with, necessary for or relating to the Business (other than sales of
inventory for fair consideration in the ordinary course of the Business), whether by
merger, purchase of assets, purchase of stock, tender offer, lease, license or otherwise,
other than with the Purchaser, (B) a merger, reorganization, share exchange, consolidation,
business combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company, or (C) any purchase or sale of, or tender or exchange offer for, the
equity securities of the Company that, if consummated, would result in any Person (or the
stockholders of such Person) beneficially owning securities representing 15% or more of the
total voting power of the Company (or of the surviving parent entity in such transaction),
including any single or multi-step transaction or series of related transactions.
Notwithstanding any other provision of this Agreement, Stockholder will not be
required to vote in favor of the adoption of the APA and the approval of the transactions
contemplated by the APA if the Company and the Purchasers amend the APA and such amendment
is not approved by the Board of Directors of the Company.
(d) Each Stockholder agrees to be present (in person or by proxy) or to cause the
holder or holders of record of all of the Subject Shares on the applicable record date
(each, a “Record Holder”) to be present (in person or by proxy) at any meeting of
the stockholders of the Company called to vote on any matter contemplated by this Agreement
so that all of the Subject Shares will be counted for the purpose of determining the
presence of a quorum at such meetings, and to vote or cause each Record Holder to vote all
of the Subject Shares in the manner required by this Agreement.
(e) AS SECURITY FOR THE PERFORMANCE OF THE OBLIGATIONS OF EACH STOCKHOLDER PROVIDED
FOR IN THIS AGREEMENT, EACH STOCKHOLDER HEREBY GRANTS TO THE PURCHASER AND WITH FULL POWER
OF SUBSTITUTION, AN IRREVOCABLE PROXY TO VOTE THE SUBJECT SHARES OF SUCH STOCKHOLDER AS
PROVIDED IN THIS AGREEMENT. EACH STOCKHOLDER AGREES THAT THIS PROXY IS COUPLED WITH AN
INTEREST AND WILL BE IRREVOCABLE DURING THE TERM OF THIS AGREEMENT. EACH STOCKHOLDER WILL
TAKE SUCH FURTHER ACTIONS OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE REQUESTED BY THE
PURCHASER TO EFFECTUATE THE INTENT OF THIS PROXY. EACH STOCKHOLDER HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH RESPECT TO HIS, HER OR ITS
SUBJECT SHARES AND AGREES NOT TO GRANT ANY PROXY THAT CONFLICTS OR IS INCONSISTENT
WITH THE PROXY GRANTED TO THE PURCHASER IN THIS AGREEMENT.
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(f) From the date hereof until any termination of this Agreement in accordance with
its terms, each Stockholder agrees not to (i) sell, transfer, tender pursuant to a tender
offer, pledge, encumber, assign or otherwise dispose of or hypothecate (including by gift
or by contribution or distribution to any trust or similar instrument or to any
beneficiaries of the Stockholder) (collectively, “Transfer”), or enter into any
contract, option or other arrangement or understanding (including any profit sharing
arrangement) with respect to the Transfer of any of his, her or its Subject Shares other
than pursuant to the terms of this Agreement, (ii) enter into any voting arrangement or
understanding with respect to his, her or its Subject Shares, whether by proxy, voting
agreement or otherwise, or (iii) take any action that could reasonably be expected to make
the Stockholder’s representations or warranties contained in this Agreement untrue or
inaccurate or could reasonably be expected to have the effect of preventing or disabling
the Stockholder from performing any of his, her or its obligations under this Agreement.
(g) Each Stockholder hereby authorizes and instructs the Company and its counsel to
notify the Company’s transfer agent that there is a stop transfer order with respect to all
of his, her or its Subject Shares and that this Agreement places limits on the voting of
the Subject Shares. Each Stockholder agrees with, and covenants to, the Purchaser that the
Stockholder will not request that the Company register the Transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any of his, her or
its Subject Shares, unless such Transfer is made in compliance with this Agreement.
(h) Notwithstanding anything contained in this Agreement to the contrary, nothing in
this Agreement shall in any way (a) restrict or limit the Stockholder or any designee or
representative of Stockholder who is a director or officer of the Company from taking (or
omitting to take) any action in his or her capacity as a director or officer of the Company
or otherwise fulfilling his or her fiduciary obligations as a director or officer of the
Company, or (b) restrict or limit (or require Stockholder to attempt to restrict or limit)
any designee or representative of Stockholder who is a director or officer of the Company
from acting in such capacity or voting in such capacity in his or her sole discretion on
any matter. It is expressly understood that (i) Stockholder is not making any agreement or
understanding herein in his, her or its capacity as, or on behalf of any designee or
representative of Stockholder who is, a director or officer of the Company and (ii)
Stockholder is signing this Agreement solely, and this Agreement shall apply to Stockholder
solely, in his, her or its capacity as a record or beneficial owner of Shares.
2. Representations and Warranties of the Stockholders. Each Stockholder hereby,
severally and not jointly, represents and warrants to the Purchaser as follows:
(a) If the Stockholder is a corporation, partnership, limited liability company, trust
or other entity (i) such Stockholder is a corporation, partnership, limited liability
company, trust or other entity duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its organization and (ii) the execution,
delivery and performance by such Stockholder of this Agreement and the performance by such
Stockholder of the obligations of such Stockholder under this
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Agreement have been duly and validly authorized by its board of directors, partners,
managers, members, trustees or other governing body, as the case may be, and no other
actions or proceedings on the part of the Stockholder are necessary to authorize the
execution and delivery by the Stockholder of this Agreement or the performance by the
Stockholder of the Stockholder’s obligation under this Agreement. Such Stockholder has all
necessary power and authority to execute and deliver this Agreement and to perform such
Stockholder’s obligations under this Agreement This Agreement constitutes a valid and
binding obligation of such Stockholder, enforceable against such Stockholder in accordance
with its terms.
(b) The execution and delivery of this Agreement by such Stockholder does not, and the
performance by such Stockholder of the Stockholder’s obligations under this Agreement will
not (i) violate any law, rule or regulation applicable to such Stockholder, (ii) if such
Stockholder is a corporation, partnership, limited liability company, trust or other
entity, conflict with or violate the organizational documents of such Stockholder or (iii)
result in a violation or any breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which such Stockholder is a party or by which such Stockholder or any of such
Stockholder’s properties or assets, including the Subject Shares, are bound or affected.
(c) The execution and delivery of this Agreement by such Stockholder does not, and the
performance by such Stockholder of the Stockholder’s obligations under this Agreement will
not, require any consent, approval, authorization or permit of, or filing with or
notification to, any government or subdivision thereof, or any administrative, governmental
or regulatory authority, agency, commission, tribunal or body, domestic, foreign or
supranational.
(d) Such Stockholder is the record or beneficial owner of the Existing Shares set
forth opposite such Stockholder’s name on Schedule I attached hereto, all of which are free
and clear of any security interests, liens, charges, encumbrances, equities, claims,
options or other limitation or restriction (including any proxy and any restriction on the
right to vote, sell or otherwise dispose of such Existing Shares) that would limit or
restrict the ability of Stockholder to enter into this Agreement and perform his, her or
its obligations hereunder. Without limiting the foregoing, such Stockholder has sole
voting power and sole power of disposition with respect to all of its Subject Shares, with
no restrictions on such Stockholder’s rights of voting or disposition pertaining thereto
and no Person other than such Stockholder has any right to direct or approve the voting or
disposition of any of its Subject Shares. As of the date hereof, such Stockholder does not
beneficially own any voting securities of the Company other than the number of Shares which
constitute its Existing Shares.
(e) No broker, investment banker, financial advisor or other person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission in connection
with the transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
3. Further Assurances. From time to time prior to the Effective Time, at any other
party’s request and without further consideration, each party hereto will execute and deliver such
additional documents and take all such further lawful action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement and the APA.
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4. Additional Covenants of each Stockholder.
(a) Each Stockholder will furnish to the Purchaser and the Company all information
required for any notification, application or other filing to be made pursuant to the rules
and regulations of any applicable law, rule or regulation (including all information
required to be included in the Proxy Statement and any required Schedule 13D filing) in
connection with the transactions contemplated by this Agreement and the APA. Each
Stockholder hereby authorizes the Purchaser and the Company to publish and disclose in the
Proxy Statement and any required Schedule 13D filing its identity and ownership of Subject
Shares and the nature of its commitments, arrangements and understandings under this
Agreement.
(b) [Reserved]
(c) Except for filings that may be required under the Securities Exchange Act of 1934
(the “Exchange Act”) or as the Stockholder may be advised by outside legal counsel is
required by other applicable law, rule or regulation, prior to the termination of this
Agreement in accordance with Section 5, no Stockholder will issue any press release or make
any other public announcement or statement regarding this Agreement, the APA or any
Acquisition Proposal without the prior written consent of the Purchaser. If a Stockholder
is so advised that any such release, announcement or statement is required by applicable
law, rule or regulation, such Stockholder, to the extent not legally prohibited from doing
so, will consult with the Purchaser prior to such release, announcement or statement being
issued or made, and will provide the Purchaser with a reasonable opportunity to comment on
the content of any press release, announcement or other statement before it is issued or
made. For the avoidance of doubt, Stockholder shall not be obligated to consult with
Purchaser with respect to filings that may be required under the Exchange Act.
(d) Each Stockholder acknowledges the obligations set forth in Section 5.5 of the APA
and agrees to comply with such obligations to the extent that they may pertain to such
Stockholder.
5. Termination. This Agreement will terminate, no party will have any further rights
or obligations hereunder and this Agreement will become null and void and have no further effect
upon the earliest to occur of (a) the Closing and (b) termination of the APA in accordance with its
terms. Nothing in this Section 5 will relieve any party of liability for any breach of this
Agreement occurring prior to the effective date of the termination of this Agreement.
6. General Provisions.
(a) 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. The parties accordingly agree that, in addition to any other
remedy to which they are entitled at law or in equity, the parties are entitled to
injunctive relief to prevent breaches of this Agreement and otherwise to enforce
specifically the provisions of this Agreement. Each party expressly waives any requirement
that any other party obtain any bond or provide any indemnity in connection
with any action seeking injunctive relief or specific enforcement of the provisions of
this Agreement. Any party having any rights under any provision of this Agreement will
have all rights and remedies set forth in this Agreement and all rights and remedies that
such party may have been granted at any time under any other agreement or contract and all
of the rights that such party may have under applicable law.
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(b) Except as otherwise provided in this Agreement, each party will pay its respective
direct and indirect expenses incurred by it in connection with the preparation and
negotiation of this Agreement and the consummation of the transactions contemplated by this
Agreement, including all fees and expenses of its advisors and representatives.
(c) Purchaser may not assign or delegate any of its rights or obligations under or in
connection with this Agreement without the written consent of each Stockholder party
hereto. No Stockholder party hereto may assign or delegate any of such party’s rights or
obligations under or in connection with this Agreement without the written consent of the
Purchaser. Except as otherwise expressly provided herein, all covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto or thereto will be
binding upon and enforceable against the respective successors and assigns of such party
and will be enforceable by and will inure to the benefit of the respective successors and
permitted assigns of such party.
(d) This Agreement may be amended at any time by the execution and delivery of a
written instrument by or on behalf of each of the parties hereto.
(e) At any time prior to the Closing, the parties may extend the time for performance
of or waive compliance with any of the covenants or agreements of the other parties to this
Agreement and may waive any breach of the representations or warranties of such other
parties. No agreement extending or waiving any provision of this Agreement will be valid
or binding unless it is in writing and is executed and delivered by or on behalf of the
party against which it is sought to be enforced.
(f) Whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without invalidating
the remainder of this Agreement.
(g) This Agreement may be executed simultaneously in two or more counterparts, any one
of which need not contain the signatures of more than one party, but all such counterparts
taken together will constitute one and the same Agreement.
(h) The descriptive headings of this Agreement are inserted for convenience only and
do not constitute a part of this Agreement.
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(i) All notices, demands or other communications to be given or delivered under or by
reason of the provisions of this Agreement will be in writing and will be deemed to have
been given when delivered personally to the recipient, one business day after the date when
sent to the recipient by telecopy (receipt confirmed) or three business days after the date
when sent to the recipient by reputable express courier service
(charges prepaid). Such notices, demands and other communications will be sent to the
Purchaser and the applicable Stockholder at the addresses indicated below:
If to the Purchaser: |
Vectronix Inc. 000 Xxxxxxx Xxxx XX, Xxxxx 000 Xxxxxxxx, Xxxxxxxx 00000 Attention: Chief Executive Officer Facsimile No.: 000-000-0000 |
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with a copy (which will not constitute notice) to: |
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Safran USA, Inc. 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxx 00000 Attention: General Counsel Facsimile No.: 972-606-7114 |
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and |
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Xxxxx & XxXxxxxx LLP One Prudential Plaza 000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx X. XxXxxxxx, Esq. and Xxxxxxxxx X. Xxxxx, Esq. Facsimile No.: 000-000-0000 |
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If to a Stockholder, to the address on Schedule I |
or to such other address or to the attention of such other party as the recipient
party has specified by prior written notice to the sending party.
(j) This Agreement will not confer any rights or remedies upon any person or entity
other than the Purchaser and the Stockholders and their respective successors and permitted
assigns.
(k) This Agreement (including the APA and the other documents referred to herein)
constitutes the entire agreement among the parties and supersedes any prior understandings,
agreements or representations by or among the parties, written or oral, that may have
related in any way to the subject matter hereof.
(l) The language used in this Agreement will be deemed to be the language chosen by
the parties to express their mutual intent and no rule of strict construction will be
applied against any party. The use of the word “including” in this Agreement means
“including without limitation” and is intended by the parties to be by way of example
rather than limitation.
(m) ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS
AGREEMENT AND THE SCHEDULES HERETO WILL BE GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW OF
CONFLICTS, OF THE STATE OF DELAWARE.
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(n) Any action, suit or proceeding relating to this Agreement or the enforcement of
any provision of this Agreement may be brought or otherwise commenced only in any state or
federal court located in the State of Delaware. Each party to this Agreement (a)
irrevocably and unconditionally consents and submits to the exclusive jurisdiction and
venue of the state and federal courts located in the State of Delaware, (b) agrees that
each state and federal court located in the State of Delaware will be deemed to be a
convenient forum and (c) agrees not to assert (by way of motion, as a defense or
otherwise), in any such action, suit or proceeding commenced in any state or federal court
located in the State of Delaware, any claim that such party is not subject personally to
the jurisdiction of such court, that such action, suit or proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this Agreement or
the subject matter of this Agreement may not be enforced in or by such court.
(o) EACH OF THE PARTIES HERETO HERBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
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* * * * *
IN WITNESS WHEREOF, the parties hereto have executed and deliver this Agreement on the date
first written above.
| VECTRONIX INC. | ||||||
| By | /s/ Xxxx Xxxxxxxxxx | |||||
| Its | CEO | |||||
| Stockholders: | ||||||
| THE XXXXXXX FUND LP | ||||||
| By: | Xxxxxxx Partners, LLC | |||||
| Its General Partner | ||||||
| By: | /s/ Xxxxxxx Xxxxx | |||||
| Name: | Xxxxxxx Xxxxx | |||||
| Its: | Managing Partner | |||||
| COSTA BRAVA PARTNERSHIP III L.P. | ||||||
| By: | Xxxxx, Xxxxxxx & Hamot, LLC Its General Partner |
|||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Name: | Xxxx X. Xxxxx | |||||
| Its: | President | |||||
| /s/ Xxxx X. Xxxxxx | ||||||
| Xxxx Xxxxxx | ||||||
| /s/ Xxxx Xxxxxx | ||||||
| Xxxx Xxxxxx | ||||||
| /s/ Xxxx Xxxxxx | ||||||
| Xxxx Xxxxxx | ||||||
| /s/ Xxxxxx X. Xxxxx | ||||||
| Xxxxxx Xxxxx | ||||||
Signature Page — Stockholder Voting and Support Agreement
| STUART FAMILY TRUST | ||||||
| By | /s/ Xxxx Xxxxxx | |||||
| Its | Trustee | |||||
Signature Page — Stockholder Voting and Support Agreement
SCHEDULE I
Stockholders Participating in Stockholder Agreement
| Name | Existing Shares | |
Costa Brava Partnership III L.P. |
41,400,260 | |
000 Xxxxxxxx Xxxxxx, 00xx xxxxx Xxxxxx, XX 00000 Attention: Xxxx Xxxxx Fax: (000) 000-0000 |
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The Xxxxxxx Fund L.P. |
14,141,561 | |
c/o Griffin Partners, LLC 000 Xxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000 Attention: Xxxx Xxxxx Fax: (000) 000-0000 |
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Xxxx X. Xxxxxx |
107,115 | |
0000 Xxx Xxxx Xxxxxx Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 |
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Xxxx X. Xxxxxx, Xx. as Trustee of Stuart Family Trust |
50,963 | |
0000 Xxx Xxxx Xxxxxx Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 |
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Xxxx Xxxxxxx |
63,636 | |
0000 Xxx Xxxx Xxxxxx Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 |
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Xxxx Xxxxxx |
54,733 | |
0000 Xxx Xxxx Xxxxxx Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 |
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Xxxxxx Xxxxx |
12,948 | |
0000 Xxx Xxxx Xxxxxx Xxxxxxxx 0, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 |
