EXHIBIT 1
SECURITIES REPURCHASE AGREEMENT
This SECURITIES REPURCHASE AGREEMENT (this "Agreement") is entered into as
of July 18, 2003 (the "Effective Date") by and among Analex Corporation (the
"Company"), Xxx X. Xxxxx ("Xxxxx"), Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxxx Dynastic Trust, and S Co., LLC (collectively, the aforementioned persons
and entities other than the Company, the "Sellers").
RECITALS:
WHEREAS, each Seller is the owner of the Company securities set forth
opposite such Seller's name on Exhibit A hereto, consisting of an aggregate of
2,625,451 shares of Common Stock (the "Stock"), warrants to purchase an
aggregate of 1,134,088 shares of Common Stock (the "Warrants") and options to
purchase an aggregate of 75,000 shares of Common Stock (the "Options" and
together with the Stock and the Warrants, the "Securities"); and
WHEREAS, the Company desires to repurchase from each Seller, and each
Seller desires to sell to the Company the Securities held by such Seller and set
opposite such Seller's name on Exhibit A on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Sellers,
intending to be legally bound, hereby agree as follows:
1. Repurchase of the Repurchased Stock. Subject to and in reliance upon
the representations, warranties, terms and conditions of this Agreement, each
Seller, severally and not jointly, agrees to sell, transfer and assign to the
Company, and the Company agrees to purchase from such Seller, the Securities in
the manner described in Section 2, being all of the securities of the Sellers in
the Company whether of record, as a beneficial owner, or otherwise (except that
Xxxxx will retain those shares of Common Stock of the Company described in the
footnote on Exhibit A (the "Retained Stock"), subject to the terms of this
Agreement).
2. Consideration to Sellers.
(a) Share Purchase Price. Subject to the conditions set forth herein,
the Company agrees to pay and the Sellers, severally and not jointly, agree to
accept a price of $2.63 per share for each respective share of Stock owned by
each Seller (the "Share Purchase Price"). The Share Purchase Price was
calculated by taking a 5% discount to the average closing price of the Company's
Common Stock for the 90 trading days preceding June 19, 2003, the date that
certain parties hereto agreed to the transactions contemplated hereby (subject
to various conditions). The average closing price for such period was
approximately $2.76, resulting in the $2.63 Share Purchase Price , after the 5%
discount referred to above.
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(b) Options and Warrants. Upon the terms and subject to the conditions
set forth herein, the Company and the Sellers, severally and not jointly, agree
to terminate the Options and Warrants. Accordingly, each Seller and Purchaser
agree that each Option and each Warrant held by such Seller and set forth
opposite such Seller's name on Exhibit A, shall be terminated upon the payment
by the Company to the applicable Seller of an amount equal to the product of (a)
the Share Purchase Price less the exercise price per share required for the
exercise of the applicable warrant or option multiplied by (b) the number of
shares of Common Stock that such Seller would receive upon exercise of the
applicable option or warrant (the "Termination Payment"). Calculations showing
the Termination Payment for each Option and each Warrant are set forth on
Exhibit A.
(c) Aggregate Purchase Price. The aggregate consideration to be
received by the Sellers for the Securities will be $9,166,844.21 (the "Aggregate
Purchase Price"), with each Seller to receive the amount set forth opposite such
Seller's name on Exhibit A. The Aggregate Purchase Price shall be paid in
immediately available funds on the date that the all of the conditions set forth
in Section 7 have been achieved or their achievement has been waived by Company
and all of the conditions set forth in Section 8 have been achieved or their
achievement has been waived by the Sellers (the "Closing Date"). The closing of
the transactions provided for herein on the Closing Date is referred to as the
"Closing."
3. Effective Date Deliveries.
(a) On the Effective Date, each Seller shall deliver or cause to be
delivered to the Company:
(i) all certificates representing the Stock held by such Seller
as shown on Exhibit A, which certificates shall be accompanied by duly
executed stock powers from such Seller in the form attached hereto as
Exhibit B, to be held by the Company in escrow and released to the Company
at the Closing or returned to the Seller if this Agreement is terminated
pursuant to Section 10 or such Seller withdraws pursuant to Section 10;
provided, however, that if any certificate representing any of the Stock
held by any Seller shall have been lost, stolen or destroyed, then such
Seller shall deliver a fully executed affidavit of that fact (including
reasonable indemnity provisions in connection therewith) in form reasonably
acceptable to the Company and its counsel;
(ii) the original Warrants held by such Seller (if any) as shown
on Exhibit A, to be held by the Company in escrow and released to the
Company and marked cancelled at the Closing or returned to the Seller if
this Agreement is terminated pursuant to Section 10 or such Seller
withdraws pursuant to Section 10; provided, however, that if any Warrant
held by any Seller shall have been lost, stolen or destroyed, then such
Seller shall deliver a fully executed affidavit of that fact (including
reasonable indemnity provisions in connection therewith) in form reasonably
acceptable to the Company and its counsel;
(iii) the original Notices of Grant and Option Agreements in
connection with such Option held by such Seller (if any) as shown on
Exhibit A, to be held by the Company in escrow and released to the
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Company and marked cancelled at the Closing or returned to the Seller if
this Agreement is terminated pursuant to Section 10 or such Seller
withdraws pursuant to Section 10;
(iv) an executed original signature page to the Voting
Termination Agreement in the form attached hereto as Exhibit C (the "Voting
Termination Agreement"), to be held by the Company in escrow and released
to the Company at the Closing or returned to the Seller if this Agreement
is terminated pursuant to Section 10 or such Seller withdraws pursuant to
Section 10;
(v) an executed original signature page to the Registration
Rights Termination Agreement in the form attached hereto as Exhibit D (the
"Registration Rights Termination Agreement"), to be held by the Company in
escrow and released to the Company at the Closing or returned to the Seller
if this Agreement is terminated pursuant to Section 10 or such Seller
withdraws pursuant to Section 10; and
(vi) an executed original signature page to the Voting Agreement
by and among the Company certain of its stockholder in the form attached
hereto as Exhibit E.
(b) On the Effective Date, Xxxxx shall:
(i) execute and deliver to the Company a counterpart signature
page to the Employment Termination Agreement in the form attached hereto as
Exhibit F (the "Employment Termination Agreement"), to be held by the
Company in escrow and released to the Company at the Closing or returned to
the Seller if this Agreement is terminated pursuant to Section 10 or Xxxxx
withdraws pursuant to Section 10; and
(ii) execute and deliver to the Company a counterpart signature
page to the Non-Competition Agreement attached hereto as Exhibit G (the
"Non-Competition Agreement"), to be held by the Company in escrow and
released to the Company at the Closing or returned to the Seller if this
Agreement is terminated pursuant to Section 10 or Xxxxx withdraws pursuant
to Section 10.
(c) On the Effective Date, each of Xxxxx and Xxxxxx Xxxxx shall
deliver to the Company a signed Director Resignation in the form attached hereto
as Exhibit H, to be held by the Company in escrow and released to the Company at
the Closing or returned to the Seller if this Agreement is terminated pursuant
to Section 10 or Xxxxx withdraws pursuant to Section 10.
For the avoidance of doubt, none of the Effective Date deliverables described
above may be terminated, amended or cancelled by any Seller except in connection
with (x) the termination of this Agreement pursuant to Section 10, (y) the
withdrawal of a Seller pursuant to Section 10, or (z) an amendment to this
Agreement or waiver of a provision of this Agreement pursuant to the terms of
Section 18.
4. Representations and Warranties of Sellers. Each Seller represents and
warrants, severally and not jointly, as follows:
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(a) such Seller is the sole legal, beneficial and record owner of the
Securities set forth opposite such Seller's name on Exhibit A, free and clear of
any and all liens, claims, charges, rights or other encumbrances of any kind or
nature whatsoever, and such Seller does not own, directly or indirectly, any
additional Company securities (except that Xxxxx will retain the Retained Stock,
subject to the terms of this Agreement);
(b) the execution, delivery and performance by such Seller of this
Agreement and the consummation by such Seller of the transactions contemplated
hereby have been duly and lawfully authorized and approved by all necessary
action on the part of such Seller, and such Seller has the full power and
authority to enter into and perform such Seller's obligations under this
Agreement;
(c) this Agreement constitutes the valid and binding obligation of
such Seller, enforceable against such Seller in accordance with its terms,
subject to principles of public policy and bankruptcy, insolvency and similar
laws affecting the rights of creditors generally and except that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought;
(d) the consummation of the transactions contemplated by this
Agreement (i) does not and will not (with or without the passage of time)
contravene any provision of the formation or organizational documents of such
Seller (if applicable), as in effect of the date hereof, (ii) does not and will
not (with or without the passage of time) violate any law or regulation, or any
order or decree of any court or governmental authority applicable to such
Seller, (iii) does not and will not (with or without the passage of time)
conflict with or result in the breach or termination of, constitute a default
under or accelerate or permit the acceleration of any performance required by,
any material contract or agreement of such Seller, and (iv) does not and will
not (with or without the passage of time) result in the creation or imposition
of any lien or encumbrance on the Securities;
(e) the consummation by such Seller of the transactions contemplated
by this Agreement does not require and will not (with or without the passage of
time) require the consent or approval of any other person or entity including
without limitation any governmental authority;
(f) no agent, broker, investment banker, person or firm acting under
the authority of such Seller is or will be entitled to any broker's or finder's
fee or any other commission directly or indirectly in connection with the
transactions contemplated herein; and
(g) Such Seller acknowledges that it is capable of evaluating the
merits and risks of the transactions contemplated hereby, such Seller has had an
adequate opportunity to ask questions and receive answers from the Company
concerning any and all matters relating to the transactions described herein and
has had the opportunity to review the terms and conditions of the Agreement with
legal counsel of its choice, and such Seller has decided to sell the Securities
based upon such Seller's review and investigation of the Company. Neither the
Company nor any other party has made any oral or written representation,
inducement, promise or agreement to Seller in connection with the sale of the
Securities, other than as expressly set forth in this Agreement.
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5. Representations and Warranties of the Company. The Company represents
and warrant to each Seller that:
(a) other than the requirement that the Company obtain stockholder
consent, the execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby have been duly and lawfully authorized and approved by all necessary
corporate action on the part of the Company, and the Company has the full
corporate power and authority to enter into and perform its obligations under
this Agreement;
(b) this Agreement constitutes the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to principles of public policy and bankruptcy, insolvency and similar laws
affecting the rights of creditors generally and except that the availability of
equitable remedies is subject to the discretion of the court before which any
proceeding therefor may be brought;
(c) the consummation of the transactions contemplated by this
Agreement (i) does not and will not (with or without the passage of time)
contravene any provision of the Certificate of Incorporation or bylaws of the
Company, as in effect of the date hereof, (ii) does not and will not (with or
without the passage of time) violate any law or regulation, or any order or
decree of any court or governmental authority applicable to the Company, and
(iii) does not and will not (with or without the passage of time) conflict with
or result in the breach or termination of, constitute a default under or
accelerate or permit the acceleration of any performance required by, any
material contract or agreement of the Company;
(d) the consummation by the Company of the transactions contemplated
by this Agreement does not require and will not (with or without the passage of
time) require the consent or approval of any other person or entity including
without limitation any governmental authority, other than (i) the approval of
the Company's stockholders, (ii) approvals required pursuant to American Stock
Exchange rules and regulations, (iii) the consent of Bank of America, N.A. (the
"Bank"), pursuant to that certain Credit Agreement by and between the Bank and
the Company dated as of November 2, 2001 (as amended and in effect on the date
hereof) and (iv) any other consents listed on the Disclosure Schedule to that
certain Subordinated Note and Series A Convertible Preferred Stock Purchase
Agreement ("Purchase Agreement") of even date herewith by and among the Company,
the purchasers named therein and the collateral agent named therein;
(e) no agent, broker, investment banker, person or firm acting under
the authority of the Company is or will be entitled to any broker's or finder's
fee or any other commission directly or indirectly in connection with the
transactions contemplated herein; and
(f) the Company acknowledges that such Seller is capable of evaluating
the merits and risks of the transactions contemplated hereby, the Company has
had an adequate opportunity to ask questions and receive answers from the
Sellers concerning any and all matters relating to the transactions described
herein, and the Company has had the opportunity to review the terms and
conditions of the Agreement with legal counsel of its choice. Neither the
Sellers
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nor any other party has made any oral or written representation, inducement,
promise or agreement to the Company in connection with the purchase of the
Securities, other than as expressly set forth in this Agreement.
6. Closing Deliveries.
(a) At the Closing, the Company shall:
(i) pay each Seller the amount of cash, in immediately available
funds, set forth opposite the name of such Seller on Exhibit A;
(ii) execute a counterpart signature page to the Employment
Termination Agreement and deliver Xxxxx a lump sum cash payment of $280,000
less applicable withholding taxes, in immediately available funds, pursuant
to the terms of the Employment Termination Agreement;
(iii) deliver Xxxxx a lump sum cash payment of $50,000, in
immediately available funds, as the first installment pursuant to the terms
of the Non-Competition Agreement; and
(iv) deliver a Closing Certificate to the Sellers in the form
attached hereto as Exhibit I.
(b) At the Closing, each Seller shall deliver or cause to be delivered
to the Company a Closing Certificate in the form attached hereto as Exhibit I.
7. Conditions Precedent to the Obligations of the Company. The obligations
of the Company to be performed under this Agreement are subject to fulfillment
of the following conditions:
(a) The representations and warranties of each Seller made in this
Agreement shall be true and correct in all material respects when made and shall
also be true and correct on and as of the Closing Date in all material respects,
with the same effect as though such representations and warranties had been made
at and as of such date;
(b) The Sellers shall have performed or complied with all agreements
and conditions required by this Agreement to be performed or complied with prior
to or at the Closing Date;
(c) The Company's stockholders shall have approved the transactions
contemplated by this Agreement and by the Purchase Agreement (collectively, the
"Transactions");
(d) The Company shall have received a bring-down fairness opinion from
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx (or such other financial advisor acceptable to the
Company's board of directors) as to the fairness of the Transactions, dated as
of the date that the Company's
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stockholders approve the Transactions, in a form acceptable to the Company's
board of directors; and
(e) The Company shall have closed the Transactions.
8. Conditions Precedent to the Obligations of the Sellers. The obligations
of the Sellers to be performed under this Agreement are subject to fulfillment
of the following conditions:
(a) Representations and warranties of the Company made in this
Agreement shall be true and correct in all material respects when made and shall
also be true and correct on and as of the Closing Date in all material respects,
with the same effect as though such representations and warranties had been made
at and as of such date; and
(b) The Company shall have performed or complied with all agreements
and conditions required by this Agreement to be performed or complied with prior
to or at the Closing Date.
9. Indemnification.
(a) Survival. All agreements, representations and warranties contained
herein made in writing by or on behalf of the parties hereto in connection with
the transactions contemplated hereby whether in this Agreement or any other
instrument or document delivered in connection herewith shall survive the
Closing Date.
(b) Hold Harmless. Each party covenants and agrees with the others
that it shall hold the others harmless from and hereby indemnify the other
against any and all damages, costs, expenses or other liabilities, including
attorneys' fees (referred to herein as "damages") resulting to the other and
arising from the material inaccuracy of or omission in or the material breach of
any conditions of the representations, warranties, covenants or agreements made
by such party in this Agreement, or for the gross negligence, willful misconduct
or fraud of such party in connection with this Agreement, the Voting Termination
Agreement, the Employment Termination Agreement, the Registration Rights
Termination Agreement or the Non-Competition Agreement; provided, however, that
(i) other than Xxxxx, in no event shall the aggregate liability of any Seller
under this Section 9 exceed the amount of the portion of the Aggregate Purchase
Price actually received by such Seller and (ii) in no event shall the aggregate
liability of Xxxxx under this Section 9 exceed the Aggregate Purchase Price.
(c) Notice. If at any time after the Closing any party has reason to
believe that it is entitled to indemnification under Section 9(b) or any claim
or dispute exists that could, unless successfully defended, entitle such party
to indemnification under Section 9(b), the party claiming indemnification (the
"Indemnified Party") shall promptly give notice in writing to the other party
(the "Indemnifying Party") of the facts entitling the Indemnified Party to
indemnification or the nature of the claim or dispute, if it can reasonably do
so. The Indemnifying Party shall have the right to defend, settle or compromise
any claim or dispute that would entitle the Indemnified Party to
indemnification, at its expense, through counsel of its choice reasonably
satisfactory to the Indemnified Party; provided, however, that in the event of a
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conflict of interest between the Indemnified Party and the Indemnifying Party,
the Indemnified Party shall be entitled to be represented by separate counsel of
its own choosing, reasonably satisfactory to the Indemnifying Party, at the
expense of the Indemnifying Party. If the Indemnifying Party refuses or fails
promptly to defend or compromise any such claim or dispute, or in the event such
defense of such claim or dispute is not successful, or if the Indemnified Party
is otherwise entitled to indemnification under Section 9(b), the Indemnifying
Party shall promptly pay or reimburse the Indemnified Party in the full amount
of any damages which the Indemnified Party becomes obligated to pay or pays at
any time as a result of any of the matters specified in Section 9(b).
(d) Exclusive Remedy. This Section 9 shall be the parties exclusive
remedy for damages (exclusive of specific performance, injunctive relief or
other equitable relief) under this Agreement, except for damages caused by fraud
or intentional misrepresentation.
10. Termination; Withdrawal. If the Closing does not occur prior to the
earlier to occur of (a) October 15, 2003 and (b) the date that either the
Company or Pequot validly terminates the Transactions, then (i) any Seller may
withdraw from this Agreement by delivering a notice of such withdrawal in
writing to the Company, and the terms of this Agreement shall thereafter not be
binding upon such Seller and (ii) the Company may terminate this Agreement upon
written notice to the Sellers. The Company hereby agrees to promptly notify
Sellers if the Company or Pequot validly terminates the Transactions.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts when taken together shall constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered (which
deliveries may be by facsimile transmission) by all of the parties hereto.
12. Expenses and Taxes. Each party hereto shall be responsible for its, her
or its own costs and expenses (including without limitation attorneys'fees) in
connection with this Agreement and the negotiation, execution, delivery and
enforcement hereof. In addition, the party responsible under law shall pay any
and all stamp and other taxes payable or determined to be payable in connection
with the execution, delivery and performance of this Agreement, and other
instruments and documents to be delivered hereunder and agree to save the other
party harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and filing
fees.
13. Lock-Up Agreement; Purchase Option.
(a) Except as provided in the next sentence, Xxxxx hereby agrees that
Xxxxx shall not sell, transfer, make any short sale of, grant any option for the
purchase of, or enter into any hedging or similar transaction with the same
economic effect as a sale, any Retained Stock until the date one year after the
date of the Closing (the "Lock-Up"). The parties hereto acknowledge and agree
that Xxxxx may (and will) sell shares of Retained Stock pursuant to Xxxxx'x
existing 10b5-1 (the "Sale Plan") after the Effective Date until the number of
Retained Shares equals 100,000, at which time he will use all reasonable best
efforts consistent with applicable law and the Company's xxxxxxx xxxxxxx policy
to terminate the Sale Plan; provided, however, that if notwithstanding the
foregoing Xxxxx is unable to terminate the Sale Plan when the number of
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Retained Shares equals 100,000, then the parties acknowledge the number of
Retained Shares remaining upon the termination of the Sale Plan may be less than
100,000 shares.
(b) Xxxxx hereby acknowledges that currently he intends to gift all of
the Retained Shares remaining after the termination of the Sale Plan (the "Gift
Shares") at some time after the Closing to an affiliate of the University of
Chicago ("Chicago"). If Xxxxx does gift these shares to Chicago prior to the
first anniversary of the Effective Date, Xxxxx shall ensure that such shares
remain subject to the Lock-Up until the first anniversary of the Effective Date.
(c) If Xxxxx does not gift the Gift Shares to Chicago but instead
seeks to Transfer (as defined below) the Gift Shares to any other person or
entity prior to February 15, 2006, Xxxxx shall notify the Company in writing 30
days prior to such Transfer and offer the Company the right to purchase all or
part of the Gift Shares for $2.63 per share (the "Transfer Notice"). If the
Company does not accept the offer in the Transfer Notice within such 30-day
period, Xxxxx shall be free to Transfer in accordance with all applicable
securities laws the Gift Shares to any other person or entity. If the Company
desires to accept the offer in the Transfer Notice within such 30-day period, it
shall sent a written notice to Xxxxx (the "Acceptance Notice"), setting forth
the number of Gift Shares it elects to purchase and setting a date, not later
than 10 days after the Acceptance Notice, when it will pay $2.63 per share for
the Gift Shares it elects to purchase. The closing of the purchase and sale of
the shares set forth in the Acceptance Notice shall occur at the time and place
set forth in the Acceptance Notice. If Xxxxx should Transfer any Gift Stock in
contravention of the Company's purchase rights set forth above, such Transfer
shall be void and the Company shall not be required to effect such Transfer on
its stock transfer books nor will it treat any alleged transferee as the holder
of record of such shares. As used herein, "Transfer" shall mean and include any
sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift,
transfer by request, devise or descent, or other transfer or disposition of any
kind, including, but not limited to, transfers to receivers, levying creditors,
trustees or receivers in bankruptcy proceedings or general assignees for the
benefit of creditors, whether voluntary or by operation of law, directly or
indirectly, of any of the Gift Stock.
(d) If Xxxxx does not gift the Gift Shares to Chicago or otherwise
Transfer the Gift Shares pursuant to Section 13(c) prior to January 31, 2006,
Xxxxx shall send a written notice to the Company on or prior to January 31, 2006
offering the Company the right to purchase the Gift Shares for $2.63 per share
on or prior to February 15, 2006 (the "Final Option Notice"). If the Company
does not accept the offer in the Final Option Notice within such 15-day period,
Xxxxx shall be free to retain such shares or to Transfer the Gift Shares to any
other person or entity and the provisions of this Section 13 shall no longer
apply to the Gift Shares. If the Company desires to accept the offer in the
Final Option Notice, it shall send a written notice to Xxxxx prior to February
15, 2006 (the "Final Offer Acceptance Notice"), setting forth the number of Gift
Shares it elect to purchase and setting a date, not later than 10 days after the
Final Offer Acceptance Notice, when it will pay $2.63 per share for such Gift
Shares that it elects to purchase. The closing of the purchase and sale of such
shares shall occur at the time and place set forth in the Final Offer Acceptance
Notice.
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14. Prior Agreements. This Agreement constitutes the entire agreement among
the Company and the Sellers with respect to the subject matter hereof and
supersedes any prior understandings or agreements concerning the subject matter
hereof.
15. Mutual Drafting. This Agreement is the mutual product of the parties
hereto, and each provision hereof has been subject to the mutual consultation,
negotiation and agreement of each of the parties, and shall not be construed for
or against any of the parties hereto.
16. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the other provisions of this Agreement, and this
Agreement shall be construed and reformed to the fullest extent possible.
17. Governing Law and Forum. This Agreement shall be construed and enforced
in accordance with and governed by the internal laws of the State of Delaware
without regard to its conflict of laws provisions. Exclusive jurisdiction and
venue for any litigation arising under this Agreement is in the Eastern District
of Virginia for Federal matters and Fairfax County court for State matters and
both parties hereby consent to such jurisdiction and venue for this purpose.
18. Amendment and Waiver. Except as otherwise expressly provided herein,
this Agreement may be amended by the parties hereto by execution of an
instrument in writing signed on behalf of (a) the Company and (b) the Sellers
entitled to receive a majority of the funds the Company would be required to pay
all of the Sellers under this Agreement on the Closing Date (a "Majority in
Interest"). Any action, extension or waiver by any party of any provision hereto
shall be valid only if set forth in an instrument in writing signed on behalf of
such party. An action, extension or waiver signed by a Majority in Interest
shall bind all of the Sellers.
19. Headings. Paragraph and subparagraph headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of the Agreement for any other purpose.
20. Parties in Interest; Third Party Beneficiaries. All of the terms and
provisions of this Agreement shall be binding on and inure to the benefit of and
be enforceable by the heirs, representatives, successors in interest, and
assigns of the respective parties hereto. Notwithstanding the foregoing, each
Seller agrees that it shall not transfer any Securities prior to first to occur
of the Closing Date or the termination of this Agreement or withdrawal of such
Seller pursuant to the Section 10 hereof.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this SECURITIES
REPURCHASE AGREEMENT to be executed as of the date set forth above.
COMPANY:
Analex Corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Xxxxxxxx X. Xxxxxxxx, Xx.
President and Chief Executive Officer
SELLERS:
/s/ Xxx X. Xxxxx
-------------------------------------
Xxx X. Xxxxx, individually
/s/ Xxxxxxxx Xxxxx
-------------------------------------
Xxxxxxxx Xxxxx, individually
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, individually
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx, individually
Xxxxx Dynastic Trust
By: /s/ Xxx X. Xxxxx
---------------------------------
Xxx X. Xxxxx, Trustee
S Co., LLC
By: /s/ Xxx X. Xxxxx
---------------------------------
Xxx X. Xxxxx, Managing Partner
[Signature Page to Securities Repurchase Agreement]
Exhibit A
Securities
-------------------- ------------- -------------------------------------
CONSIDERATION SECURITIES
-------------------- ------------- -------------------------------------
For All Shares of Common Stock Stock
Name Securities Common Stock* Warrants Options
-------------------- ------------- -------------------------------------
Xxx X. Xxxxx $600,623.45 23,238 235,161 65,000
-------------------- ------------- -------------------------------------
Xxxxxxxx X. Xxxxx $879,016.21 166,634 230,769 -
-------------------- ------------- -------------------------------------
Xxxxx Dynastic Trust $5,261,741.64 1,515,422 668,158 -
-------------------- ------------- -------------------------------------
S Co., LLC $1,947,791.15 740,605 - -
-------------------- ------------- -------------------------------------
Xxxxxx Xxxxx $241,560.88 89,776 - 10,000
-------------------- ------------- -------------------------------------
Xxxxxx Xxxxx $236,110.88 89,776 - -
-------------------- ------------- -------------------------------------
Total $9,166,844.21 2,625,451 1,134,088 75,000
-------------------- ------------- -------------------------------------
* Xxxxx Stock holdings reflect the agreement that he will retain certain shares
of Common Stock (less than 110,000) as of the Effective Date, subject to the
terms of this Agreement.
Warrant and Option Purchases
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Exercise Aggregate Price For
Option/ Underlying Price per Exercise Underlying Purchase
Holder Warrant Date Shares Share Price Common Stock Price
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxx X. Xxxxx Warrant 03/30/00 235,161 $0.72 $169,315.92 $618,473.43 $449,157.51
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxx X. Xxxxx Option 03/31/00 15,000 $1.64 $24,600.00 $39,450.00 $14,850.00
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxx X. Xxxxx Option 09/29/00 50,000 $1.12 $56,000.00 $131,500.00 $75,500.00
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxxxxxxx X. Xxxxx Warrant 03/30/00 230,769 $0.72 $166,153.68 $606,922.47 $440,768.79
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxxxx Dynastic Trust Warrant 03/30/00 668,158 $0.72 $481,073.76 $1,757,255.54 $1,276,181.78
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxxxxx Xxxxx Option 12/05/01 5,000 $1.75 $8,750.00 $13,150.00 $4,400.00
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
Xxxxxx Xxxxx Option 01/29/03 5,000 $2.42 $12,100.00 $13,150.00 $1,050.00
--------------------- ------- -------- ---------- --------- ----------- ------------- -------------
EXHIBIT B
Form of
IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the undersigned, ________________ ("Transferor"), in
connection with that certain Securities Repurchase Agreement, by and among
Analex Corporation, a Delaware Corporation ("Transferee"), and Transferor,
entered into as of July ___, 2003, does hereby assign and transfer to
Transferee, ______________ shares of Common Stock, constituting all of the
issued and outstanding shares in Transferee represented by certificate number "
", standing or listed in the name of the undersigned on the books of Transferee.
The undersigned does hereby constitute and appoint the Secretary of
Transferee as agent and attorney to transfer the said stock on the books of
Transferee with full power of substitution in the premises.
Effective Date: ____________________, 2003
TRANSFEROR:
By:______________________________________________
Name:____________________________________________
Title (if applicable):___________________________
Entity (if applicable):__________________________
ACKNOWLEDGED BY:
Analex Corporation
By: _____________________________________________
Xxxxxxxx X. Xxxxxxxx, Xx.
President and Chief Executive Officer
EXHIBIT C
Voting Termination Agreement
SEE ATTACHED
EXHIBIT D
Registration Rights Termination Agreement
SEE ATTACHED
EXHIBIT E
Voting Agreement
SEE ATTACHED
EXHIBIT F
Employment Termination Agreement
SEE ATTACHED
EXHIBIT G
Non-Competition Agreement
SEE ATTACHED
EXHIBIT H
Form of
Director Resignation
SEE ATTACHED
_______________, 2003
To the Board of Directors of Analex Corporation
Re: Resignation as a Director of Analex Corporation
Dear board members:
This is to provide you with written notice that I hereby resign as a
director of Analex Corporation (the "Company"), such resignation to be
effective, and conditioned upon the closing of the sale of subordinated notes
and convertible preferred stock to affiliates of Pequot Ventures which is
expected to occur in late August or early September, 2003. This resignation
shall be irrevocable and effective without any additional action on my part.
I appreciate the opportunity to be part of the development of Analex and
wish the Company continued success.
Very truly yours,
EXHIBIT I
Form of
Closing Certificate
SEE ATTACHED
ANALEX CORPORATION
Closing Certificate
The undersigned delivers this certificate pursuant to the Securities
Repurchase Agreement dated July ___, 2003, by and among Analex Corporation (the
"Company"), Xxx X. Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx
Dynastic Trust, and S Co., LLC (the "Agreement"). Capitalized terms used herein
but not defined herein defined herein shall have the meanings assigned to them
in the Agreement. The undersigned hereby certifies as follows:
1. The representations and warranties of the undersigned made in the
Agreement are true and correct in all material respects on and as of the Closing
Date, with the same effect as though such representations and warranties had
been made at and as of such date; and
2. The undersigned has performed or complied with all agreements and
conditions required by the Agreement to be performed or complied with prior to
or at the Closing Date.
IN WITNESS WHEREOF, the undersigned have executed this Closing Certificate
this day of _____________________, 2003.
By:_______________________________________
Name:_____________________________________
Title (if applicable):____________________
Entity (if applicable):___________________
