Exhibit 10.15
ADDENDUM TO ASSIGNMENT OF SERIES
1 AND SERIES 2 SENIOR
SUBORDINATED SECURED CONVERTIBLE
NOTES DATED DECEMBER 30, 2005
This Addendum to Assignment of
Series 1 and Series 2 Senior Subordinated Secured Convertible Notes
dated December 30, 2005 (this “ Addendum ”) is
entered into as of December 29, 2006, by and between PEQUOT PRIVATE
EQUITY FUND III, L.P. and PEQUOT OFFSHORE PRIVATE EQUITY PARTNERS
III, L.P. (collectively, “Pequot”); IRVINE SENSORS
CORPORATION, a Delaware corporation (“ Borrower
”); and LONGVIEW FUND, LP and ALPHA CAPITAL ANSTALT
(collectively, the “ Buyer ”), and is an
integral part and supplements the terms and conditions of that
certain Assignment of Series 1 and Series 2 Senior Subordinated
Secured Convertible Notes issued by Borrower to Pequot on December
30, 2005 (the “ Notes ”).
NOW, THEREFORE, for good and
valuable consideration, Pequot and Buyer agree as
follows:
1. Purchase and Sale .
Subject to the terms and conditions of this Addendum, Buyer agrees
to purchase from Pequot and Pequot agrees to sell to Buyer, the
loans (the “Subordinated Loans”) made pursuant to the
Notes and other agreements and instruments identified on Exhibit
A hereto (the “ Subordinated Loan Documents
”). The sale, transfer and assignment of the Subordinated
Loans and Subordinated Loan Documents is and shall be without any
representation or warranty by Pequot of any kind or nature
whatsoever, expressed or implied, except only such representations
and warranties of Pequot as are expressly and specifically provided
in Section 8 of this Addendum. Buyer acknowledges and agrees
that Buyer shall have no right to use the name or other business
identification of Pequot.
2. Consideration . The
consideration to be given by Buyer to Pequot for the Subordinated
Loans and the Subordinated Loan Documents shall be Ten Million
Dollars ($10,000,000) (the “ Purchase Price
”).
3. Closing . The consummation
of the sale and purchase pursuant to this Addendum (the “
Closing ”) is contemplated to occur substantially
concurrently with the execution and delivery of this Addendum and
in any event on or before December 29, 2006 (the “
Closing Date ”). In order to complete the Closing,
(a) Buyer agrees to wire transfer to Pequot the Purchase Price
in accordance with wiring instructions set forth in Schedule 1
attached hereto, and to deliver to Pequot the Buyer’s Closing
Items (hereinafter defined), and (b) the Borrower agrees to
deliver to Buyer and Pequot, as applicable, the Borrower’s
Closing Items (as hereinafter defined). Upon confirmation of
receipt of the Purchase Price, Pequot will deliver Pequot’s
Closing Documents (hereinafter defined) to Buyer.
4. Purchase and Sale
.
(a) Effective upon the Closing, and
subject to and conditioned upon the terms, covenants, limitations,
and conditions contained herein, Pequot hereby sells, transfers,
and assigns to Buyer, and Buyer hereby purchases and accepts from
Pequot, in each case on and as of the Closing Date, all of
Pequot’s right, title and interest, in, to, and under the
Subordinated Loans and the Subordinated Loan Documents.
(b) Buyer shall assume, at the
Closing, all of the obligations of Pequot under or in connection
with the Subordinated Loans or the Subordinated Loan Documents, of
every kind or nature whatsoever, existing on the date of Closing or
arising thereafter.
(c) If Pequot receives any payments
from Borrower with respect to the Subordinated Loans after the
Closing, Pequot will forward those payments to Buyer, except any
payments to be made with respect to the Subordinated Loans on
account of interest, fees or other amounts thereunder as set forth
in the Settlement Agreement and Mutual Release dated as of the date
hereof by and between the Borrower and Pequot.
(d) Effective upon the Closing, that
certain subordination agreement dated December 30, 2005
between Pequot and Square 1 Bank shall be terminated.
5. Pequot’s Closing
Documents . In connection with the Closing, Pequot shall
deliver to Buyer, as provided in Section 3, the following
documents (collectively “ Pequot’s Closing
Documents ”):
(a) The Original Notes via messenger
to Buyer’s counsel.
(b) An Assignment and Assumption of
Subordinated Loan Documents, in the form attached hereto as
Exhibit B , duly executed by Pequot, assigning and
transferring to Buyer all of Pequot’s rights and interests in
and to the Subordinated Loan Documents, and assumption of the same
by Buyer.
(c) Written Notice of Assignment of
the Subordinated Loans, in the form attached hereto as Exhibit
C , duly executed by Pequot instructing Borrower to remit all
payments to Buyer or its agents.
(d) Any other documents reasonably
required by Buyer to effect the transactions contemplated
hereunder.
6. Buyer’s Closing
Obligations . In connection with the Closing, Buyer shall
deliver to Pequot, the following (collectively “
Buyer’s Closing Items ”):
(a) At the Closing, Buyer shall wire
transfer the Purchase Price to Pequot as provided
herein.
(b) The Assignment and Assumption of
Subordinated Loan Documents, in the form attached hereto as
Exhibit B , duly executed by Buyer.
(c) The Acknowledgement, Agreement
and Consent, attached as a signature page hereto.
7. Borrower’s Closing
Obligations . In connection with the Closing, Borrower shall
deliver to Buyer (i) UCC-2 or UCC-3 financing statements, as
applicable, for each Uniform Commercial Code Financing Statement
filed by Pequot against either the Borrower or any Subsidiary of
the Borrower, evidencing the assignment of all of Pequot’s
rights therein to Buyer, and (ii) copies of all Subordinated
Loan Documents. All of the foregoing items are
collectively
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referred to as the “ Borrower’s
Closing Items ”). Effective upon Pequot’s receipt
of the Purchase Price, Pequot consents to and authorizes Borrower
and/or the Buyer to electronically file the UCC-2 and UCC-3
financing statements referred to in Section 7(a)
above.
8. Representations and Warranties
of Pequot . Each Pequot fund hereby severally and not jointly
represents and warrants to Buyer with respect to such Pequot fund
as follows:
(a) Pequot Private Equity Fund III,
L.P. is a Delaware limited partnership duly formed and validly
existing under Delaware law. Pequot Offshore Private Equity
Partners III, L.P. is an exempted limited partnership duly formed
and validly existing under the laws of the Cayman
Islands.
(b) Pequot has the full power and
authority to execute, deliver and perform this Addendum and to
enter into and consummate the transactions contemplated by this
Addendum. Pequot has duly authorized the execution, delivery and
performance of this Addendum, has duly executed and delivered this
Addendum and this Addendum constitutes a legal, valid and binding
obligation of Pequot, enforceable against Pequot in accordance with
its terms.
(c) Pequot is the legal and
beneficial owner and holder of the Subordinated Loans and Pequot
has not pledged, assigned or otherwise previously transferred the
Subordinated Loans. The Subordinated Loan Documents are free and
clear of any adverse claims created by Pequot.
(d) Pequot has not modified or
amended the Subordinated Loans, except as disclosed to
Buyer.
(e) The purchase price as set forth
on Schedule 1 accurately reflects the outstanding principal on the
Notes in all material respects.
(f) Pequot believes that, as of the
Closing, it should not be an “affiliate” of Borrower as
that term is defined by the rules and regulations promulgated under
the Securities Act of 1933, as amended.
Buyer acknowledges and agrees that
Pequot shall have no liability whatsoever with respect to the
representation set forth in Section 8(f) above.
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9. Representations and Warranties
of Buyer . Each Buyer severally and not jointly hereby
represents and warrants to Pequot with respect to such
Buyer:
(a) Longview Fund, LP is a limited
partnership duly organized, validly existing and in good standing
under the laws of the State of California. Alpha Capital Anstalt is
a corporation duly organized, validly existing and in good standing
under the laws of Lichtenstein.
(b) Buyer has, and at all relevant
times has had, the full power and authority to execute, deliver and
perform and to enter into and consummate all transactions
contemplated by this Addendum. Buyer has duly authorized the
execution, delivery and performance of this Addendum, has duly
executed and delivered this Addendum, and this Addendum constitutes
a legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance with its terms.
(c) Buyer has made such examination,
review and investigation of the Subordinated Loan Documents and the
Subordinated Loans, and of any and all facts and circumstances
necessary to evaluate the Subordinated Loan Documents and the
Subordinated Loans it has deemed necessary or appropriate. Except
for the representations and warranties specifically and expressly
made by Pequot above (a) Buyer has been and will continue to
be solely responsible for Buyer’s own independent
investigations as to all aspects of the transactions contemplated;
and (b) Buyer has not relied upon any expressed or implied,
written or oral, representation, warranty or other statement by or
on behalf of Pequot concerning any of the, except for such
representations and warranties of Pequot as are specifically and
expressly provided in this Addendum.
(d) Buyer is acquiring the
Subordinated Loans and Subordinated Loan Documents without any view
either to participate in (other than as described in this
Addendum), or to sell the Subordinated Loans and Subordinated Loan
Documents in connection with, any public distribution thereof, and
Buyer has no intention of making any distribution of the
Subordinated Loans and Subordinated Loan Documents in a manner
which would violate applicable securities laws; provided ,
however , that nothing in this Addendum shall restrict or
limit in any way Buyer’s ability and right to dispose of all
or part of the Subordinated Loans and Subordinated Loan Documents
in accordance with such laws if at some future time Buyer deems it
advisable to do so; and, provided , further , that
Buyer and any party acquiring all or any portion of the
Subordinated Loans and Subordinated Loan Documents or any proceeds
thereof from Buyer, other than Pequot or any successor, must agree
in writing with Pequot to be bound (or to continue to be bound) by
this Addendum.
10. Further Assurances
.
(a) Effective upon the Closing,
Pequot and Buyer each hereby covenant and agree to execute and
deliver all such documents and instruments, and to take such
further actions as may be reasonably necessary or appropriate, from
time to time, to carry out the intent and purpose of this Addendum
and to consummate the transactions contemplated hereby.
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11. Miscellaneous.
(a) Notices . Unless
otherwise provided in this Addendum, all notices or demands by any
party relating to this Addendum or any other agreement entered into
in connection herewith shall be in writing and (except for
financial statements and other informational documents which may be
sent by first-class mail, postage prepaid) shall be personally
delivered or sent by a recognized overnight delivery service,
certifie
