EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of July 18, 2003, is by
and among the persons listed on Schedule I hereto (each a "Stockholder", and,
collectively, the "Stockholders").
WHEREAS, Pequot Private Equity Fund III, L.P. and Pequot Offshore Private
Equity Partners III, L.P. (collectively, "Pequot") and Analex Corporation, a
Delaware corporation (the "Company") propose to enter into a Subordinated Note
and Series A Convertible Preferred Stock Purchase Agreement of even date
herewith (as the same may be amended or supplemented, the "Purchase Agreement")
providing for the purchase by Pequot of shares of Series A convertible preferred
stock, $.02 par value per share, of the Company (the "Series A Preferred
Stock"), certain warrants to purchase Common Stock, $.02 par value per share, of
the Company (the "Common Stock") and certain secured subordinated convertible
promissory notes of the Company (the transactions contemplated by the Purchase
Agreement, including without limitation the issuance of securities thereunder
and the amendment or amendment and restatement of the Company's Certificate of
Incorporation, the "Transactions");
WHEREAS, as a condition to the execution and delivery of the Purchase
Agreement, Pequot has requested that the Stockholders enter into this Agreement;
WHEREAS, the Stockholders believe that the execution, delivery and
performance of the Purchase Agreement and the consummation of the transactions
contemplated thereby is in the best interests of the Company and its
shareholders; and
WHEREAS, each Stockholder is the record and beneficial owner, or the
trustee of a trust whose beneficiaries are the beneficial owners, of such number
of shares of Common Stock of the Company set forth opposite such Stockholder's
name on Schedule I hereto (such shares of Common Stock, as such shares may be
adjusted by stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction, together with shares of Common Stock that may be acquired after the
date hereof by such Stockholder, including shares of Common Stock issued upon
the exercise of options or warrants to purchase Common Stock (as the same may be
adjusted as aforesaid), being collectively referred to herein as the "Shares").
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein, the Stockholders agree as follows:
1. Representations and Warranties of the Stockholders. Each Stockholder
hereby, severally and not jointly, represents and warrants to the other
Stockholders as follows:
(a) Authority. The Stockholder has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the
Stockholder. This Agreement has been duly executed and delivered by the
Stockholder and, assuming this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder in accordance
with its terms (subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief, or other equitable remedies).
Except as set forth on Schedule II hereto, neither the execution, delivery or
performance of this Agreement by the Stockholder nor the consummation by the
Stockholder of the transactions contemplated hereby will (i) require any filing
with, or permit, authorization, consent or approval of, any federal, state,
local or municipal foreign or other government or subdivision, branch,
department or agency thereof or any governmental or quasi-governmental authority
of any nature, including any court or other tribunal, (a "Governmental Entity"),
(ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default under, or give rise to any right of
termination, amendment, cancellation or acceleration under, or result in the
creation of any pledge, claim, lien, option, charge, encumbrance or security
interest of any kind or nature whatsoever (a "Lien") upon any of the properties
or assets of the Stockholder under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, permit, concession,
franchise, contract, agreement or other instrument or obligation (a "Contract")
to which the Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets, including the Stockholder's Shares, may be
bound or (iii) violate any judgment, order, writ, preliminary or permanent
injunction or decree (an "Order") or any statute, law, ordinance, rule or
regulation of any Governmental Entity (a "Law") applicable to the Stockholder or
any of the Stockholder's properties or assets, including the Stockholder's
Shares.
(b) The Shares. Subject to the terms of this Agreement, the Stockholder's
Shares and the certificates representing such Shares are now, and at all times
during the term hereof will be, held by such Stockholder, or by a nominee or
custodian for the benefit of such Stockholder. Except as set forth on Schedule
II hereto, the Stockholder has good and marketable title to such Shares, free
and clear of any Liens, proxies, voting trusts or agreements, understandings or
arrangements, except for any such Liens or proxies arising hereunder. The
Stockholder owns of record or beneficially no Common Stock or other voting
interest in the Company other than such Stockholder's Shares and shares of
Company Common Stock issuable upon the exercise of options and warrants, in each
case as set forth on Schedule I hereto.
(c) Purchase Agreement. Each Stockholder understands and acknowledges that
Pequot is entering into the Purchase Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
2. Board Approval. Each Stockholder understands and acknowledges that the
Board of Directors of the Company has, to the extent required by applicable law,
duly and validly
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authorized and approved, this Agreement, the Purchase Agreement and the
transactions contemplated hereby and thereby.
3. Agreements of All Stockholders. Each Stockholder, severally and not
jointly, agrees as follows:
(a) Until the Transactions are consummated or the Purchase Agreement is
terminated in accordance with its terms, the Stockholder shall not, (i) except
as otherwise expressly provided herein, sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or other arrangement
(including any profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of, the Shares to any
person, (ii) enter into or exercise its rights under any voting arrangement,
whether by proxy, voting agreement, voting trust, power-of-attorney or
otherwise, with respect to the Shares or (iii) take any other action that would
in any way restrict, limit or interfere with the performance of its obligations
hereunder or the transactions contemplated hereby.
(b) At any meeting of Stockholders of the Company called to vote upon the
Transactions and the Purchase Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Transactions and the Purchase Agreement or
which is necessary to consummate the Transactions or for the Company to perform
its obligations under the Purchase Agreement is sought, each Stockholder shall,
including by executing a written consent if requested by the Company, vote (or
cause to be voted) such Stockholder's Shares in favor of the Transactions and
the adoption by the Company of the Purchase Agreement.
(c) The Stockholders understand and acknowledge that Pequot is entering
into the Purchase Agreement in reliance upon the agreements of the Stockholders
herein.
4. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of
Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints Xxxxxxxx X.
Xxxxxxxx, Xx., and any other individual who shall hereafter be designated by the
Stockholders, and each of them, as such Stockholder's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Shares, or grant a consent or approval
in respect of such Shares, at any meeting of Stockholders of the Company or at
any adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought in favor of the Transaction, the adoption by
the Company of the Purchase Agreement and the approval of the other transactions
contemplated by the Purchase Agreement.
(b) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the proxy set forth in this
Section 4 is coupled with an interest and is irrevocable until such time as this
Agreement terminates
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in accordance with its terms. Such Stockholder hereby further affirms that the
irrevocable proxy is given in connection with the execution of the Purchase
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder under this Agreement. Such Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
5. Transfers of Shares. During the term of this Agreement, no Stockholder
shall Transfer any Shares unless the Person receiving Transfer of such Shares
executes an Instrument of Accession in the form attached hereto as Exhibit A
agreeing to be bound by the terms of this Agreement. 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 Securities.
6. Further Assurances. Each Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
transfers, assignments, endorsements, consents and other instruments as the
Company or Pequot may reasonably request for the purpose of effectively carrying
out the transactions contemplated by this Agreement and to vest the power to
vote such Stockholder's Shares as contemplated by Section 4.
7. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the consummation or termination of the
Purchase Agreement in accordance with its terms. Nothing in this Section 7 shall
relieve any Stockholder from liability for willful breach of this Agreement.
8. General.
(a) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(b) Entire Agreement; Third-Party Beneficiaries. Each party hereby
acknowledges that no other party or any other person or entity has made any
promises, warranties, understandings or representations whatsoever, express or
implied, not contained in this Agreement and acknowledges that it has not
executed this Agreement in reliance upon any such promises, representations,
understandings or warranties not contained herein or therein and that this
Agreement supersedes all prior agreements and understandings between the parties
with respect thereto. Pequot shall be a third party beneficiary of the rights
and
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benefits of this Agreement. This Agreement is not intended to confer upon any
person other than the parties hereto and Pequot any rights or remedies
hereunder.
(c) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
(d) Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
(e) Notices. All notices and other communications required or permitted
hereunder shall be in writing. Notices shall be delivered personally, via
recognized overnight courier (such as Federal Express, DHL or Airborne Express)
or via certified or registered mail. Notices may be delivered via facsimile or
e-mail, provided that by no later than two days thereafter such notice is
confirmed in writing and sent via one of the methods described in the previous
sentence. Notices shall be addressed to the address of each Stockholder as is
set forth on the books and records of the Company, or at such other address or
facsimile number as such Stockholder shall have furnished in writing to the
other parties hereto. All notices shall be effective upon receipt.
(f) Severability Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction to the greatest extent
possible to carry out the intentions of the parties hereto.
(g) Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party under this Agreement, upon any breach or default
of any other party under this Agreement, shall impair any such right, power or
remedy of such nonbreaching or nondefaulting party nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.
(h) Facsimile Signatures. Any signature page delivered by a fax machine
shall be binding to the same extent as an original signature page, with regard
to any agreement subject to the terms hereof or any amendment thereto.
(i) Amendment and Waiver. This Agreement may be amended by the parties
hereto by execution of an instrument in writing signed on behalf of the
Stockholders holding a majority of Shares held by all of the Stockholders and
the written consent of any third party beneficiary hereto. 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 the Stockholders holding a majority of Shares held by all of
the Stockholders shall bind all of the Stockholders.
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9. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Stockholder signs solely in his, her or its capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Stockholder's Shares and nothing herein shall
limit or affect any actions taken by a Stockholder in its capacity as an officer
or director of the Company to the extent specifically permitted by the Purchase
Agreement or as otherwise required by law..
10. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States. This
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, each party hereto has signed this Agreement as of the
date first written above.
STOCKHOLDERS:
By: /s/ Xxx X. Xxxxx
----------------------------------
Xxx X. Xxxxx
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Xxxxxxxx X. Xxxxx
XXXXX DYNASTIC TRUST
By: /s/ Xxx X. Xxxxx
----------------------------------
Name: Xxx X. Xxxxx
Title: Trustee
S. CO. LLC
By: /s/ Xxx X. Xxxxx
----------------------------------
Name: Xxx X. Xxxxx
Title: Managing Partner
By: /s/ J. Xxxxxxx Xxxx
----------------------------------
J. Xxxxxxx Xxxx
By: /s/ X.X. Xxxxxxx
----------------------------------
X.X. Xxxxxxx
By: /s/ Xxxxx Xxxxxxx, Xx.
----------------------------------
Xxxxx Xxxxxxx, Xx.
By: /s/ Lese Xxx Xxxxxx
----------------------------------
Lese Xxx Xxxxxx
Signature Page to Voting Agreement
By: /s/ Xxxx Xxxxxxxxx
----------------------------------
Xxxx Xxxxxxxxx
By: /s/ Xxxxxx Xx Xxxxxxx
----------------------------------
Xxxxxx XxXxxxxxx
Signature Page to Voting Agreement
SCHEDULE I
-------------------- ------------ ---------------------
STOCKHOLDER COMMON STOCK OPTION/WARRANT SHARES
-------------------- ------------ ---------------------
Xxx X. Xxxxx 146,468 300,161
-------------------- ------------ ---------------------
Xxxxxxxx X. Xxxxx 166,634 230,769
-------------------- ------------ ---------------------
Xxxxx Dynastic Trust 1,515,422 668,158
-------------------- ------------ ---------------------
S. Co. LLC 740,805
-------------------- ------------ ---------------------
Xxxx Xxxx 792,135
-------------------- ------------ ---------------------
X.X. Xxxxxxx 610,875
-------------------- ------------ ---------------------
Xxxxx Xxxxxxx, Xx. 1,108,397
-------------------- ------------ ---------------------
Lese Xxx Xxxxxx 1,596,459
-------------------- ------------ ---------------------
Xxxx Xxxxxxxxx 330,815
-------------------- ------------ ---------------------
Xxxxxx XxxXxxxxxx 728,820
-------------------- ------------ ---------------------
SCHEDULE II
Required Filings:
----------------
Filings with the Securities and Exchange Commission pursuant to the requirements
of the Securities and Exchange Act of 1934, as amended.
Voting Agreements With Respect To the Shares:
--------------------------------------------
The Voting Agreement, dated March 30, 2000, as amended, by and among the Company
and the individuals listed on the signature pages thereto.
Exhibit A
Form of Instrument of Accession
Instrument of Accession
Reference is made to that certain Voting Agreement dated as of July ____,
2003, a copy of which attached hereto (as amended and in effect from time to
time, the "Voting Agreement"), among the Stockholders (as defined therein).
The undersigned, ____________________________________, in order to become
the owner or holder of [identify Securities being Transferred] (the
"Securities") of Analex Corporation, a Delaware corporation (the "Company")
hereby agrees that by his, her or its execution hereof the undersigned is a
Stockholder party to the Voting Agreement subject to all of the restrictions and
conditions applicable to Stockholders set forth in such Voting Agreement, and
all of the Shares purchased by the undersigned in connection herewith (and any
and all debt and equity of the Company issued in respect hereof) are subject to
all the restrictions and conditions applicable to such Shares as set forth in
the Voting Agreement. This Instrument of Accession shall take effect and shall
become a part of said Voting Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the State of
Delaware.
Signature __________________________________________
Address __________________________________________
__________________________________________
__________________________________________
Date: _______________________
