INTELLI-CHECK – MOBILISA, INC. STOCKHOLDER VOTING AGREEMENT
EXHIBIT
10.2
INTELLI-CHECK –
MOBILISA, INC.
This
Voting Agreement (this “Agreement”) is made as of March 14, 2008 by and among
Intelli-Check – Mobilisa, Inc., a Delaware corporation (the “Company”), and
each of the individuals and entities signatory hereto (each a “Voting Party” and
collectively, the “Voting Parties”).
WITNESSETH:
WHEREAS,
this Agreement is made pursuant to the Merger Agreement, dated November 20,
2007, by and among the Company, Intelli-Check Merger Sub, Inc., a Washington
corporation, Mobilisa, Inc., a Washington corporation, and certain common
shareholders of Mobilisa, Inc. (the “Merger Agreement”).
WHEREAS,
each of the Voting Parties owns the shares of the Company’s capital stock set
forth opposite his or her name on Exhibit
A
and
wishes to provide for orderly elections of the Company’s Board of Directors (the
“Board of Directors”).
WHEREAS, it
is a
condition of the Merger Agreement that each of the Voting Parties enter a voting
agreement with the Company in the form of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Terms.
Capitalized terms used and not otherwise defined herein that are defined in
the
Merger Agreement shall have the meanings given to such terms in the Merger
Agreement.
2. Agreement
to Vote.
During
the term of this Agreement, to the extent they are entitled under the Company’s
Certificate of Incorporation and the Delaware General Corporation Law to vote
on
a particular matter, each Voting Party agrees to vote all securities of the
Company that he or she may vote in the election of the Company’s directors that
such Voting Party now has or hereafter acquires (hereinafter referred to as
the
“Voting Shares”) in accordance with the provisions of this Agreement, whether at
a regular or special meeting of stockholders or any class or series of
stockholders or by written consent.
3. Election
of Board of Directors.
3.1 Voting.
For a
period of one (1) year after the date hereof and subject to the Company’s
Certificate of Incorporation and the Delaware General Corporation Law, each
Voting Party agrees to vote all Voting Shares in such manner as may be necessary
to elect (and maintain in office) as members of the Board of Directors the
following persons:
(i) The
four
(4) persons named by the Parent Directors to the slate of directors presented
for election at each annual or special meeting of stockholders where the Board
of Directors is to be elected; and
(ii) The
four
(4) persons named by the Company Directors to the slate of directors presented
for election at each annual or special meeting of stockholders where the Board
of Directors is to be elected.
3.2 Size
of the Board of Directors.
For a
period of one (1) year after the date hereof, the parties hereto agree that
they
will vote to, and that they will cause the Board of Directors to, maintain
the
size of the Board of Directors at eight (8) persons, unless the Board of
Directors unanimously (with all directors voting) votes to increase the number
of directors on the Board of Directors.
3.3 Obligations;
Removal of Directors; Vacancies.
The
obligations of the Voting Parties pursuant to this Section 3 shall include
any stockholder vote to amend the Company’s Certificate of Incorporation or
Bylaws as required to effect the intent of this Agreement. Each of the Voting
Parties and the Company agrees not to take any actions that would materially
and
adversely affect the provisions of this Agreement and the intention of the
parties with respect to the composition of the Company’s Board of Directors as
herein stated. The parties acknowledge that the fiduciary duties of each member
of the Company’s Board of Directors are to the Company’s stockholders as a
whole. Any director elected pursuant to the terms hereof may be removed, with
or
without cause, only by those Voting Parties entitled to designate such director.
In the event any director elected pursuant to the terms hereof ceases to serve
as a member of the Company’s Board of Directors, the Company and the Voting
Parties agree to take all such action as is reasonable and necessary, including
the voting of shares of capital stock of the Company by the Voting Parties
as to
which they have beneficial ownership, to cause the election or appointment
of
such other substitute person to the Board of Directors as may be designated
on
the terms provided herein.
4. Successors
in Interest of the Voting Parties and the Company.
The
provisions of this Agreement shall be binding upon the successors in interest
of
any Voting Party with respect to any of such Voting Party’s Voting Shares or any
voting rights therein. The Company shall not permit the transfer of any Voting
Party’s Voting Shares unless and until the person to whom such securities are to
be transferred shall have executed a written agreement pursuant to which such
person becomes a party to this Agreement and agrees to be bound by all the
provisions hereof as if such person was a Voting Party hereunder.
5. Covenants.
The
Company and each Voting Party agrees to take all actions required to ensure
that
the rights given to each Voting Party hereunder are effective and that each
Voting Party enjoys the benefits thereof. Such actions include, without
limitation, the use of best efforts to cause the nomination of the designees,
as
provided herein, for election as directors of the Company. Neither the Company
nor any Voting Party will, by any voluntary action, avoid or seek to avoid
the
observance or performance of any of the terms to be performed hereunder by
the
Company or any such Voting Party, as applicable, but will at all times in good
faith assist in the carrying out of all of the provisions of this Agreement
and
in the taking of all such actions as may be necessary or appropriate in order
to
protect the rights of each Voting Party hereunder against
impairment.
6. Grant
of Proxy.
Should
the provisions of this Agreement be construed to constitute the granting of
proxies, such proxies shall be deemed coupled with an interest and are
irrevocable for the term of this Agreement.
7. Restrictive
Legend.
Each
certificate representing any of the Voting Shares subject to this Agreement
shall be marked by the Company with a legend reading as follows:
“THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF WHICH
MAY
BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE
PERSON HOLDING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND
BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.”
8. Specific
Enforcement.
It is
agreed and understood that monetary damages would not adequately compensate
an
injured party for the breach of this Agreement by any party hereto, that this
Agreement shall be specifically enforceable, and that any breach of this
Agreement shall be the proper subject of a temporary or permanent injunction
or
restraining order. Further, each party hereto waives any claim or defense that
there is an adequate remedy at law for such breach or threatened breach and
agrees that a party’s rights would be materially and adversely affected if the
obligations of the other parties under this Agreement were not carried out
in
accordance with the terms and conditions hereof.
9. Manner
of Voting.
The
voting of shares pursuant to this Agreement may be effected in person, by proxy,
by written consent or in any other manner permitted by applicable
law.
10. Termination.
The
term of this Agreement shall commence on the date hereof and end one (1) year
from the date hereof.
11. Amendments
and Waivers.
Except
as otherwise provided herein, additional parties may be added to this Agreement,
any provision of this Agreement may be amended or the observance thereof may
be
waived (either generally or in a particular instance and either retroactively
or
prospectively) only with the written consent of (a) the Company, and (b)
the holders of a majority of Voting Shares then held by the Voting
Parties.
12. Stock
Splits, Stock Dividends, etc.
In the
event of any stock split, stock dividend, recapitalization, reorganization
or
the like, any securities issued with respect to Voting Shares held by Voting
Parties shall become Voting Shares for purposes of this Agreement and the
minimum number of Voting Shares pursuant to which certain Voting Parties may
name designees will be appropriately adjusted.
13. Severability.
In the event that any provision of the Agreement shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
14. Governing
Law.
This
Agreement and the legal relations between the parties arising hereunder shall
be
governed by and interpreted in accordance with the laws of the State of Delaware
without reference to its conflicts of laws provisions.
15. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one
instrument.
16. Successors
and Assigns.
Except
as otherwise expressly provided in this Agreement, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors and assigns of
the
parties hereto.
17. Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement among
the
parties, except for that certain Director Agreement, dated as of even date,
by
and among the Company and the directors of Intelli-Check, Inc. and Mobilisa,
Inc., and supersedes any prior agreement or understanding among the parties
(including, without limitation, the Prior Agreement), with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except
as
specifically set forth herein or therein.
18. Jurisdiction;
Venue.
With
respect to any disputes arising out of or related to this Agreement, the parties
consent and submit to the exclusive jurisdiction of, and venue in, the state
courts in Wilmington County in the State of Delaware.
This
Stockholder Voting Agreement is hereby executed effective as of the date first
set forth above.
COMPANY
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INTELLI-CHECK –
MOBILISA, INC.
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a
Delaware corporation
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Chief
Executive Officer
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[Signature
page to the Stockholder Voting Agreement]
VOTING
PARTIES
If
an
individual:
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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If
an
individual:
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/s/
Xxxxxx Xxxxxx
|
|
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Name:
Xxxxxx Xxxxxx
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[Signature
page to the Stockholder Voting Agreement]
Exhibit
A
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7,996,364
common shares
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|
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Xxxxxx
Xxxxxx
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4,158,456
common shares
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