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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, certified mail, postage
prepaid, return receipt requested, or by telefacsimile to Pequot or
Buyer, as the case may be, at its addresses set forth below:
If to Pequot:
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c/o Pequot Capital Management, Inc.
500 Nyala Farm Road
Westport, CT 06880
Facsimile No.: 203-429-2400
Telephone No.: 203-429-2200
Attn: Aryeh Davis
Carlos
Rodrigues
With a copy to:
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Proskauer Rose LLP
1585 Broadway
New York, NY 10036-8299
Facsi
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