Exhibit 10.5
EXECUTION VERSION
VOTING
AGREEMENT
THIS VOTING AGREEMENT, dated as of
October 5, 2005 (this “Agreement” ) is by
and between Viisage Technology, Inc. a Delaware corporation (
“Company” ) and the undersigned stockholder (the
“Stockholder” ) of the Company.
WHEREAS, as of the date hereof, the
Stockholder owns of record and beneficially (as determined in
accordance with Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act” )) the number of shares of capital stock of the
Company set forth on the signature page hereto (such shares, or any
other voting or equity of securities of the Company hereafter
acquired by the Stockholder prior to the termination of this
Agreement, being referred to herein collectively as the
“Shares” );
WHEREAS, the Company and L-1
Investment Partners LLC (the “Investor” ) have
entered into a certain Investment Agreement of even date herewith
(the “Investment Agreement” ), pursuant to
which, upon the terms and subject to the conditions thereof, the
Investor will purchase shares of common stock of the Company and
warrants to purchase shares of common stock of the Company (the
“Investment” ); and
WHEREAS, as a condition to the
willingness of the Company and the Investor to consummate the
Investment, the Company and the Investor have required that the
Stockholder agree, and in order to induce the Company and the
Investor to enter into the Investment, the Stockholder is willing
to agree to vote the Shares in favor of the Investment upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the parties
hereby agree as follows:
1. Voting of
Shares.
(a) Voting . The Stockholder
covenants and agrees that until the termination of this Agreement
in accordance with the terms hereof, at any meeting of the
stockholders of the Company, however called with respect to any of
the following, and in any action by written consent of the
stockholders of the Company with respect to any of the following,
the Stockholder will vote, or cause to be voted, all of his, her or
its respective Shares (i) in favor of the Investment and the
transactions contemplated by the Investment Agreement and any
matter that could reasonably be expected to facilitate the
Investment and the transactions contemplated by the Investment
Agreement, and (ii) against any Competing Transaction (as
defined in the Investment Agreement) and any matter that could
reasonably be expected to hinder, impede or delay the consummation
of the Investment and the transactions contemplated by the
Investment Agreement.
(b) Irrevocable Proxy
.
(i) The Stockholder hereby
irrevocably grants to and appoints, and hereby authorizes and
empowers, the Company, and any individual designated in writing by
it, and each of them individually, as the Stockholder’s sole
and exclusive proxy and attorney-in-fact
(with full power of substitution and
resubstitution), for and in the Stockholder’s name, place and
stead, to vote and exercise all voting and related rights (to the
fullest extent that the Stockholder is entitled to do so) with
respect to his, her or its Shares at any meeting of the
stockholders of the Company called, and in every written consent in
lieu of such meeting, with respect to any of the matters specified
in, and in accordance and consistent with, this Section 1. The
Stockholder may vote the Shares on all other matters not
contemplated by this Section 1.
(ii) The Investor and the Company
understands and acknowledges that the Investor and Company are
entering into the Investment in reliance upon the
Stockholder’s execution and delivery of this Agreement. The
Stockholder hereby affirms that the irrevocable proxy set forth in
this Section 1(b) constitutes an inducement for the Investor
and the Company to enter into the Investment. Except as otherwise
provided for herein, the Stockholder hereby (a) affirms that
the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked, (b) ratifies and confirms all that
the proxies appointed hereunder may lawfully do or cause to be done
by virtue hereof and (c) affirms that such irrevocable proxy
is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of Delaware General Corporation
Law.
(iii) Upon the execution of this
Agreement by the Stockholder, the Stockholder hereby revokes any
and all prior proxies or powers of attorney given by the
Stockholder with respect to the Shares. The Stockholder
acknowledges and agrees that no subsequent proxies with respect to
such Shares shall be given, and if given, shall not be effective.
All authority conferred herein shall survive the death or
incapacity of the Stockholder and any obligation of the Stockholder
hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the Stockholder.
Notwithstanding any other provisions of this Agreement, the
irrevocable proxy granted hereunder shall automatically terminate
upon the Expiration Date (as defined in Section 4).
2. Transfer of
Shares.
(a) Until the consummation of the
Investment or unless the transferee agrees to be bound by the terms
of this Agreement, the Stockholder covenants and agrees that the
Stockholder will not directly or indirectly, (i) sell, assign,
transfer (including by merger, testamentary disposition,
interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law), pledge, encumber or
otherwise dispose of any of the Shares, (ii) deposit any of
the Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto which is inconsistent with this
Agreement or (iii) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect
sale, assignment, transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law) or other
disposition of any Shares.
(b) The Company shall not recognize
the transfer of any Shares in violation of the transfer
restrictions set forth in Section 2(a) of this
Agreement.
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3. Representations and Warranties
of the Stockholder . The Stockholder hereby represents and
warrants to the Company as follows:
(a) Ownership of Shares . The
Stockholder owns of record and beneficially all of the Shares set
forth on the signature page hereto and has good and marketable
title to such Shares. The Stockholder does not own any equity
interest in the Company other than as set forth on the signature
page hereto. The Stockholder has sole voting power (or shared
voting power solely with its affiliates), without restriction, with
respect to all of the Shares. The Stockholder has not entered into
any agreement to sell, assign, transfer, pledge, encumber or
otherwise dispose of any of the Shares, other than the Pledge and
Security Agreement between Lau Acquisition Corp. d/b/a Lau
Technologies and Fleet National Bank dated as of May 30, 2003,
as amended.
(b) Power, Binding Agreement
. The Stockholder has the legal capacity and all requisite power
and authority to enter into and perform all of its, his or her
obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by the Stockholder and constitutes a
valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms.
(c) No Conflict; Required Filings
and Consents .
(i) The execution and delivery of
this Agreement by the Stockholder does not, and the performance of
this Agreement by the Stockholder will not, (a) conflict with
or violate any statute, law, rule, regulation, order, judgment or
decree applicable to the Stockholder or by which the Stockholder or
any of the Stockholder’s properties or assets is bound or
affected, (b) violate or conflict with the certificate of
incorporation, bylaws or other equivalent organizational documents
of the Stockholder (if any), or (c) result
