Exhibit 7.03
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as
of November 8, 2006 by and between Northrop Grumman Space & Mission Systems
Corp., an Ohio corporation ("Parent"), and the undersigned securityholder
("Stockholder") of Essex Corporation, a Virginia corporation (the
"Company").
RECITALS:
A. Parent, the Company and Merger Sub (as defined below) are
concurrently entering into a Merger Agreement (the "Merger Agreement"),
which provides for the merger (the "Merger") of Eagle Transaction
Corporation, a Virginia corporation ("Merger Sub"), with and into the
Company, pursuant to which all outstanding capital stock of the Company
will be converted into the right to receive the consideration set forth in
the Merger Agreement.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such number of shares of the outstanding capital stock of the Company, and
such number of shares of capital stock of the Company issuable upon the
exercise of outstanding options and warrants, as set forth on the signature
page hereof.
C. As an inducement and a condition to entering into the Merger
Agreement by Parent, Parent has requested that Stockholder agree, and
Stockholder has agreed (in his or her capacity as such, and not in any
other capacity, including as a director or officer of the Company, as
applicable), to enter into this Agreement in order to facilitate the
consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto
agree as follows:
1. Definitions. For the purposes of this Agreement, capitalized terms
that are used but not defined herein shall have the respective meanings
ascribed thereto in the Merger Agreement.
(a) "Expiration Date" shall mean the earliest to occur of (i) the
six month anniversary of the date and time as the Merger Agreement shall
have been validly terminated according to its terms, and (ii) the date and
time as the Merger shall become effective in accordance with the terms and
conditions set forth in the Merger Agreement.
(b) "Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(c) "Shares" shall mean: (i) all securities of the Company
(including all shares of capital stock of the Company and all preferred
stock, options, warrants and other rights to acquire shares of capital
stock of the Company) owned by Stockholder as of the date of this
Agreement, and (ii) all additional securities of the Company (including all
additional shares of capital stock of the Company and all additional
options, warrants and other rights to acquire shares of capital stock of
the Company) which Stockholder acquires beneficial ownership during the
period commencing with the execution and delivery of this Agreement until
the Expiration Date.
(d) "Transfer" shall mean, with respect to any security, the direct
or indirect assignment, sale, transfer, tender, pledge, hypothecation, or
the gift, placement in trust, or other disposition of such security
(excluding transfers by testamentary or intestate succession or otherwise
by operation of law) or any right, title or interest therein (including,
but not limited to, any right or power to vote to which the holder thereof
may be entitled, whether such right or power is granted by proxy or
otherwise), or the record or beneficial ownership thereof, the offer to
make such a sale, transfer, or other disposition, and each agreement,
arrangement or understanding, whether or not in writing, to effect any of
the foregoing.
2. Restriction on Transfer, Proxies and Non-Interference. At all times
during the period commencing with the execution and delivery of this
Agreement and continuing until the Expiration Date, Stockholder shall not,
directly or indirectly, (A) cause or permit the Transfer of any of the
Shares to be effected or enter into any contract, option or other agreement
with respect to, or consent to, a Transfer of, any of the Shares or
Stockholder's voting or economic interest therein, (B) grant any proxies or
powers of attorney with respect to any of the Shares, deposit any of the
Shares into a voting trust or enter into a voting agreement or other
similar commitment or arrangement with respect to any of the Shares in
contravention of the obligations of Stockholder under this Agreement, (C)
request that the Company register the Transfer in contravention of this
Agreement of any certificate or uncertificated interest representing any of
the Shares or (D) permit any such Shares to be, or become subject to, any
pledges, liens, preemptive rights, security interests, claims, charges or
other encumbrances or arrangements (each, an "Encumbrance").
3. Agreement to Vote Shares. During the period commencing on the date
hereof and continuing until the Expiration Date, at every meeting of
stockholders of the Company called with respect to any of the following,
and at every adjournment or postponement thereof, and on every action or
approval by written consent of stockholders of the Company with respect to
any of the following, Stockholder shall vote, to the extent not voted by
the Person(s) appointed as proxies under Section 4, or shall cause the
record holder of any Shares on the applicable record date to appear (in
Person or by proxy) and vote the Shares:
(a) in favor of adoption and approval of the Merger Agreement and
the Merger contemplated thereby, including each other action, agreement and
transaction contemplated by or in furtherance of the Merger Agreement, the
Merger and this Agreement;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions
contemplated by the Merger Agreement;
(c) except as otherwise agreed to in writing in advance by Parent,
against any other action, proposal, transaction or agreement that would
compete with or serve to interfere with, delay, discourage, adversely
affect or inhibit the timely consummation of the Merger; and
(d) against any Takeover Proposal (other than the Takeover Proposal
contemplated by the Merger Agreement).
4. Limited Irrevocable Proxy. Stockholder hereby irrevocably and
unconditionally revokes any and all previous proxies granted with respect
to the Shares. By entering into this Agreement, Stockholder hereby
irrevocably and unconditionally grants a proxy appointing Xxx Xxxxx and
Xxxx Xxxxx of Parent as such Stockholder's attorneys-in-fact and proxies,
with full power of substitution, for and in such Stockholder's name, to
vote, express, consent or dissent, or otherwise to utilize such voting
power solely as specifically set forth in Section 3 as to the matters
specified in Section 3. The proxy granted by Stockholder pursuant to this
Section 4 is coupled with an interest and is irrevocable and is granted in
consideration of Parent entering into this Agreement and incurring certain
related fees and expenses. Notwithstanding the foregoing, the proxy granted
by Stockholder shall be revoked upon termination of this Agreement in
accordance with its terms. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with Section 13.1-663(D) of the Xxxxxxxxx
Stock Corporation Act ("VSCA"). Parent covenants and agrees that Xxx Xxxxx
and Xxxx Xxxxx of Parent shall attend any stockholder meeting called with
respect to the matters in Section 3 either in person or by proxy, and shall
vote all the Shares as contemplated by Section 3 at any such meeting,
including any adjournment or postponement thereof.
5. No Solicitations. From the date hereof until the Expiration Date,
but subject to Section 12 hereof, Stockholder agrees neither Stockholder
nor any of its Affiliates, officers or directors shall, and Stockholder
shall not permit Stockholder's or its Affiliates' employees, agents or
representatives, including any investment banker, attorney, consultant or
accountant (collectively, "Representatives") on its behalf to, initiate,
solicit or knowingly encourage any inquiries or the making of, any Takeover
Proposal from any Person other than Parent. Stockholder further agrees
that, from the date hereof until the Expiration Date, Stockholder shall
not, and Stockholder shall not permit any of its Representatives to, (i)
engage in any discussions or negotiations with, or provide any confidential
or non-public information or data to, any Person other than Parent relating
to a Takeover Proposal, (ii) knowingly encourage any effort or attempt by
any Person other than Parent to make or implement a Takeover Proposal, or
(iii) execute or enter into with any Person other than Parent, any letter
of intent, exclusivity agreement, agreement in principle, voting agreement,
acquisition agreement, option agreement, or other similar agreement related
to any Takeover Proposal. Stockholder agrees that it, its Affiliates,
officers, directors and Representatives will immediately upon execution of
this Agreement cease and cause to be terminated any existing activities,
discussions or negotiations with any Persons other than Parent with respect
to any Takeover Proposal.
6. Representations and Warranties and Agreements of Stockholder.
Stockholder hereby represents and warrants to Parent that, as of the date
hereof and at all times until the Expiration Date:
(a) Stockholder is the beneficial owner of all of the Shares set
forth on the signature page of this Agreement. Stockholder has sole voting
power and sole power of disposition with respect to all of the Shares set
forth on the signature page of this Agreement, with no limitations,
qualifications or restrictions on such rights, subject to applicable
federal securities laws and the terms of this Agreement. Stockholder does
not beneficially own any securities of the Company other than the Shares
set forth on the signature page of this Agreement, as supplemented from
time to time pursuant to Section 10 hereof.
(b) The Shares are free and clear of any Encumbrances or other
encumbrances of any kind or nature.
(c) Stockholder has the legal capacity, power and authority to
enter into and perform all of Stockholder's obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate or breach, and will not give rise to any
violation or breach of, Stockholder's certificate of formation or limited
liability company agreement or other organizational documents (if
Stockholder is not an individual), or any law, court order, contract,
instrument, arrangement or agreement by which such Stockholder is a party
or is subject, including, without limitation, any voting agreement or
voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to general principles of equity and as may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors'
rights generally.
(d) The execution and delivery of this Agreement by Stockholder
does not, and, to the best of Stockholder's knowledge, the performance by
Stockholder of his, her or its obligations hereunder will not, require
Stockholder to obtain any consent, approval, authorization or permit of, or
to make any filing with or notification to, any Governmental Entity, other
than required filings under Section 13 of the Exchange Act.
(e) Each Stockholder will, in its capacity as a beneficial owner of
the Shares, at all times until the Expiration Date, (i) use all reasonable
efforts to cooperate with the Company and Parent in connection with the
Merger, (ii) promptly take such further actions and execute and deliver
such additional documents as may be necessary or appropriate to consummate
the Merger, (iii) provide any information reasonably requested by the
Company or Parent for any regulatory application or filing made or approval
sought for the Merger and (iv) make all filings with all third parties and
Governmental Entities necessary for the consummation of the transactions
contemplated by this Agreement and the Merger Agreement and other documents
in connection with the Merger.
7. Representations and Warranties of Parent. Parent hereby represents
and warrants to the Stockholder that, as of the date hereof, Parent has the
legal capacity, power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance
of this Agreement by Parent will not violate or breach, and will not give
rise to any violation or breach of, its articles of incorporation or any
law, court order, contract, instrument, arrangement or agreement by which
such Parent is a party or is subject. This Agreement has been duly and
validly executed and delivered by Parent and constitutes a valid and
binding agreement of Parent, enforceable against Parent in accordance with
its terms, subject to general principles of equity and as may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors'
rights generally.
8. Consent. Stockholder consents and authorizes Parent and the Company
to publish and disclose in the Company Proxy Materials (including all
documents filed with the SEC in connection therewith) its identity and
ownership of the Shares and the nature of its commitments, arrangements and
understandings under this Agreement.
9. No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in Parent any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. Except as provided in this
Agreement, all rights, ownership and economic benefits relating to the
Shares shall remain vested in and belong to Stockholder.
10. Stockholder Notification of Acquisition of Additional Shares. At
all times during the period commencing with the execution and delivery of
this Agreement and continuing until the Expiration Date, Stockholder shall
promptly notify Parent of the number of any additional Shares and the
number and type of any other voting securities of the Company acquired by
Stockholder, if any, after the date hereof.
11. Appraisal Rights. Stockholder irrevocably waives and agrees not to
exercise any rights (including, without limitation, under Article 15 of the
VSCA) to demand appraisal of any of the Shares which may arise with respect
to the Merger.
12. Actions of the Stockholder as Director or Officer. In the event
the Stockholder is a director of the Company, notwithstanding anything to
the contrary in this Agreement, but subject to compliance with the terms
and conditions of Section 6.4 of the Merger Agreement and without limiting
in any way any of the terms, conditions or obligations thereof, nothing in
this Agreement is intended or shall be construed to require the Stockholder
to take any action that is incompatible with the Stockholder's fiduciary
duties as a director of the Company or in any way limit any action that the
Stockholder may take to discharge the Stockholder's fiduciary duties as a
director of the Company, and in the event the Stockholder is an officer of
the Company, nothing in Section 5 of this Agreement is intended or shall be
construed to prevent the Stockholder from taking any actions in accordance
with the proper directions of the Board of Directors of the Company that
are given in compliance with and subject to the terms, conditions and
obligations of Section 6.4 of the Merger Agreement.
13. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof.
(b) Termination of Agreement. Except as set forth below, this
Agreement shall terminate on the earlier to occur of the Expiration Date or
such time as the parties hereto may mutually agree. In the event of the
termination of this Agreement, this Agreement shall forthwith become null
and void, there shall be no liability on the part of any of the parties and
all rights and obligations of each party hereto shall cease; provided,
however, that no termination of this Agreement shall relieve any party
hereto from any liability for any breach of any provision of this Agreement
prior to termination.
(c) Certain Events. This Agreement and the obligations hereunder
shall attach to all of the Shares and shall be binding upon any Person to
whom legal or beneficial ownership of any of the Shares shall pass, whether
by operation of law or otherwise.
(d) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties.
(e) Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
(f) Notices. Any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and
delivered personally or sent by registered or certified mail, postage
prepaid, facsimile or by overnight courier:
If to Parent, to:
Northrop Grumman Space & Mission Systems Corp.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Corporate Vice President and General Counsel
Facsimile: 000 000-0000
with a copy (which will not constitute notice to Parent) to:
Northrop Grumman Space & Mission Systems Corp.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Director Strategic Transactions
Facsimile: 000-000-0000
and with a copy (which will not constitute notice to Parent)
to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: 212 859-4000
If to Stockholder, to the address for notice set forth
on the signature page hereof.
or to such other persons or addresses as may be designated in writing by
the Person to receive such notice as provided above. Any notice, request,
instruction or other document given as provided above shall be deemed given
to the receiving party upon actual receipt, if delivered personally; three
(3) business days after deposit in the mail, if sent by registered or
certified mail; upon confirmation of successful transmission if sent by
facsimile; or on the next business day after deposit with an
internationally recognized overnight courier, if sent by such a courier.
(g) Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If
any provision of this Agreement, or the application thereof to any Person
or any circumstance is determined by a court of competent jurisdiction to
be invalid, void or unenforceable the remaining provisions hereof, shall,
subject to the following sentence, remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, so long as
the economic or legal substance of the transactions contemplated hereby is
not affected in any manner adverse to either party. Upon such
determination, the parties shall negotiate in good faith in an effort to
agree upon such a suitable and equitable provision to effect the original
intent of the parties.
(h) No Waiver. At any time prior to the Effective Time, the parties
hereto may, to the extent legally allowed, waive compliance with any of the
obligations contained herein. Any agreement on the part of a party hereto
to any such waiver shall be valid only if set forth in a written instrument
signed on behalf of such party, but such waiver or failure to insist on
strict compliance with an obligation contained herein shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other failure.
(i) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the Commonwealth of Virginia, without regard
to any applicable conflicts of law rules.
(j) Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to seek, without the posting of a bond, an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions thereof in any court of the United
States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
(k) Counterparts; Signatures. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of
which together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each of the parties
hereto and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. This Agreement may be executed
and delivered by facsimile transmission.
(l) Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement shall be paid by
the party incurring such expense.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed, or caused this
Voting Agreement to be executed by a duly authorized officer, as of the
date first written above.
NORTHROP GRUMMAN SPACE AND STOCKHOLDER
MISSION SYSTEMS CORP.
By: By:
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Signature of Authorized Signatory Signature
Name: Name:
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Title: Title:
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Print Address
Shares beneficially owned:
__________ shares of the
Company Common Stock
__________ shares of the
Company Common Stock issuable
upon the exercise of
outstanding options, warrants
or other rights
