EXHIBIT 11
CUSIP No. 296744 10 5 13D/A Page 30 of 89
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of December
12, 2001, by and among Essex Corporation, a Virginia corporation, with
headquarters located at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"COMPANY"), GEF Optical Investment Company, LLC (the "PURCHASER").
WHEREAS:
A. The Company and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Rule 506 of Regulation D ("REGULATION D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC"), under the Securities Act
of 1933, as amended (the "SECURITIES ACT").
B. The Purchaser desires to purchase, upon the terms and conditions
stated in this Agreement, shares of Common Stock, no par value of the Company,
at the option of the Company exercisable from time to time as described below.
C. Contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering the Registration Rights
Agreement, dated as of the date hereof, in the form attached hereto as Exhibit A
(the "RRA") pursuant to which the Company has agreed to provide the Purchaser
with certain registration rights with respect to the Shares under the Securities
Act and the rules and regulations promulgated thereunder, and applicable state
securities laws.
NOW THEREFORE, the Company and the Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF SHARES
(a) Purchase of Shares. The Company agrees to issue and sell
to the Purchaser and the Purchaser agrees to purchase up to 38,462 shares of
Common Stock (the "Shares") at a price of $6.50 per share from time to time at
the written request of the Company (each a "Purchase Request") made on or before
January 31, 2002 and with mutual consent of the parties thereafter through June
30, 2002 (the "Commitment Period").
(b) The Closings. Each closing shall take place at the offices
of the Company, 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, within three (3)
days after a Purchase Request is issued by the Company or such later date on
which the conditions specified in Sections 5 and 6 below have been satisfied or
waived. At each Closing, (A) the Purchaser shall pay the purchase price to the
Company for the number of shares to be issued and sold to such Purchaser by
check or wire transfer, and (B) the Company shall issue instructions to its
transfer agent to issue a stock certificate representing the number of the
Shares which such Purchaser is then purchasing hereunder.
CUSIP No. 296744 10 5 13D/A Page 31 of 89
2. RESTRICTIVE LEGENDS. All certificates representing the Shares shall
have endorsed thereon legends in substantially the following forms (in addition
to any other legend which may be required by other agreements between the
parties hereto):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
Any legend required by appropriate blue sky officials.
3. PURCHASERS' REPRESENTATIONS AND WARRANTIES.
The Purchaser represents and warrants that:
(a) Investment Purpose. The Purchaser is acquiring the Shares
being purchased by it for its own account for investment only and not with a
view towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the Securities
Act; provided, however, that by making the representations herein, such
Purchaser does not agree to hold any of the Shares for any minimum or other
specific term and reserves the right to dispose of the Shares at any time,
provided further, however, that such disposition shall be in accordance with or
pursuant to a registration statement or an exemption under the Securities Act.
(b) Accredited Investor Status. Such Purchaser is an
"accredited investor" as that term is defined in Rule 501(a)(3) of Regulation D
under the Securities Act.
(c) Reliance on Exemptions. Such Purchaser understands that
the Shares are being offered and sold to it in reliance on specific exemptions
from the registration requirements of the United States federal and state
securities laws and that the Company is relying in part upon the truth and
accuracy of, and such Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of such Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of such Purchaser to acquire the Shares.
(d) Information. Such Purchaser and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Shares that have been requested by such Purchaser. Such Purchaser and its
advisors, if any, have been afforded the opportunity to ask questions of the
Company.
(e) Residency. Such Purchaser is purchasing the Shares from
its office specified in its address on the Schedule of Purchasers.
CUSIP No. 296744 10 5 13D/A Page 32 of 89
4. COVENANTS.
(a) Reasonable Best Efforts. Each party shall use its
reasonable best efforts to timely satisfy each of the conditions to be satisfied
by it as provided in Sections 5 and 6 of this Agreement.
(b) Form D and Blue Sky. The Company agrees to file a Form D
with respect to the Shares as required under Regulation D and to provide a copy
thereof to the Purchaser promptly after such filing. The Company shall take such
action as the Company shall reasonably determine is necessary in order to obtain
an exemption for or to qualify the Shares for sale to the Purchasers pursuant to
this Agreement under applicable securities or "Blue Sky" laws of the
jurisdiction of the Purchaser set forth in Section 7(f) hereof, and shall
provide evidence of any such action so taken to the Purchaser.
(c) Use of Proceeds. The Company will use the proceeds from
the sale of the Shares for general corporate purposes.
5. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligation of the
Company to issue and sell the Shares to the Purchaser at each Closing is subject
to the satisfaction, at or before each Closing, of the following conditions,
provided that these conditions are for the Company's sole benefit and may be
waived by the Company at any time in its sole discretion by providing the
Purchaser with prior written notice thereof:
(a) As of the Closing, such Purchaser shall have executed this
Agreement and the RRA and delivered the same to the Company.
(b) The representations and warranties of such Purchaser shall
be true and correct in all material respects as of the Closing and such
Purchaser shall have performed, satisfied and complied with the covenants,
agreements and conditions required to be performed, satisfied or complied with
by such Purchaser at or prior to the Closing.
6. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligation of the
Purchaser hereunder to purchase the Shares from the Company at each Closing is
subject to the satisfaction, at or before the date of such Closing, of each of
the following conditions, provided that these conditions are for the Purchaser's
sole benefit and may be waived by such Purchaser at any time in its sole
discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed this Agreement and the RRA
and delivered the same to such Purchaser; and
(b) The Company shall cause its transfer agent to execute for
delivery to such Purchaser the Stock Certificates (in such denominations as such
Purchaser shall request) for the Shares being purchased by such Purchaser.
7. MISCELLANEOUS.
(a) Governing Law; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the Commonwealth of Virginia, without giving
effect to any choice of law or conflict of law provision or rule. EACH PARTY
CUSIP No. 296744 10 5 13D/A Page 33 of 89
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(b) Counterparts. This Agreement may be executed in two or
more identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(c) Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
(e) Entire Agreement; Amendments. This Agreement supersedes
all other prior oral or written agreements between the Purchaser, the Company,
their affiliates and persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor the Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be amended or waived other than by an instrument in writing
signed by the Company and the Purchaser.
(f) Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) business day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
Essex Corporation
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, President and CEO
CUSIP No. 296744 10 5 13D/A Page 34 of 89
With a copy to:
D. Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxx & Xxxxxxx L.L.P.
0 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Purchaser:
GEF Optical Investment Company, LLC
0000 Xxx Xxxxxx, X.X
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx, Esq.
Facsimile: 000-000-0000
or to such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party five days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by a
nationally recognized overnight delivery service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns, including any purchasers of the Shares. The Company shall not assign
this Agreement or any rights or obligations hereunder including by merger or
consolidation without the prior written consent of the Purchasers.
(h) No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
(i) Survival. The representations and warranties of the
Purchaser contained in Section 3 and the agreements and covenants set forth in
Sections 4, 5 and 6 shall survive the Closing.
(j) Publicity. The Company and the Purchaser shall have the
right to approve before issuance any press releases or any other public
statements with respect to the transactions contemplated hereby, such consent
not to be unreasonably withheld.
(k) Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
CUSIP No. 296744 10 5 13D/A Page 35 of 89
(l) Brokers; Placement Agent. The Company acknowledges that it
has not engaged a broker or placement agent in connection with the sale of the
Shares. The Company shall pay, and hold the Purchaser harmless against, any
liability, loss or expense (including, without limitation, attorney's fees and
out-of-pocket expenses) arising in connection with any such claim for brokers',
financial advisory or similar fees in connection with such transaction.
[REMAINDER OF PAGE BLANK]
CUSIP No. 296744 10 5 13D/A Page 36 of 89
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Securities Purchase Agreement to be duly executed as of the date first written
above.
COMPANY:
ESSEX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
PURCHASER:
GEF OPTICAL INVESTMENT
COMPANY, LLC
By: /s/ H. Xxxxxxx Xxxxxxx
------------------------------
Name:
Title:
1392722
CUSIP No. 296744 10 5 13D/A Page 37 of 89
EXHIBITS
--------
Exhibit A Form of Purchase Request
Exhibit B Form of RRA
1393237
EXHIBIT A
ESSEX CORPORATION
NOTICE OF PURCHASE REQUEST
TO: GEF OPTICAL INVESTMENT COMPANY, LLC
0000 Xxx Xxxxxx, X.X, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx, Esq.
Fax No. 000-000-0000
FROM: ESSEX CORPORATION DATE: ________________
THIS NOTICE IS PROVIDED IN CONNECTION WITH THE COMMON STOCK PURCHASE AGREEMENT
DATED DECEMBER ___, 2001, BY AND BETWEEN ESSEX CORPORATION AND GEF OPTICAL
INVESTMENT COMPANY, LLC (THE "PURCHASE AGREEMENT"). WORDS AND EXPRESSIONS
DEFINED IN THE PURCHASE AGREEMENT SHALL BEAR THE SAME MEANINGS AS IN THIS NOTICE
AND THE TERMS AND CONDITIONS CONTAINED IN THE PURCHASE AGREEMENT ARE HEREBY
INCORPORATED BY REFERENCE AND DEEMED TO BE A PART OF THIS NOTICE.
Essex Corporation hereby makes a Purchase Request pursuant to the Purchase
Agreement as follows:
--------------------------------------------------------------------------------
(a) No. of Shares:
--------------------------------------------------------------------------------
(b) Aggregate Purchase Price
--------------------------------------------------------------------------------
(c) Closing Date
--------------------------------------------------------------------------------
CUSIP No. 296744 10 5 13D/A Page 38 of 89
ESSEX CORPORATION
By:
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
* * * * * * * * * *
We hereby confirm that each of the representations and warranties of the
Purchaser in the Purchase Agreement is true and accurate on the date hereof,
that the Purchaser has satisfied each condition precedent to Closing
contemplated by this Notice and that the Purchaser remains in compliance with
each and every obligation and covenant made by the Purchaser in the Purchase
Agreement and acknowledge our obligation to purchase and pay for the Shares in
accordance with the terms of the Purchase Agreement.
GEF OPTICAL INVESTMENT COMPANY, LLC
By:
-------------------------------
Name:
Title:
Date:
-----------------------------
CUSIP No. 296744 10 5 13D/A Page 39 of 89
AMENDMENT
TO
SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this "Amendment") is
made as of the 1st day of March, 2002, by and between Essex Corporation, a
Virginia corporation with headquarters located at 0000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000 (the "Company") and Global Environment Strategic Technology
Partners, L.P. (the "Purchaser").
WHEREAS, the Company and the Purchaser entered into a certain
Securities Purchase Agreement, dated December 12, 2001 (the "Purchase
Agreement"), pursuant to which the Purchaser purchased 38,462 shares of the
Company's common stock (the "Common Stock") at a price equal to $6.50 per share;
and
WHEREAS, the Company and the Purchaser agree that the Purchaser shall
be granted anti-dilution protection regarding the price per share of the Common
Stock purchased by the Purchaser under the Purchase Agreement, as amended
hereby; and
WHEREAS, the Company and the Purchaser desire through this Amendment to
amend the Purchase Agreement to reflect the foregoing;
NOW, THEREFORE, in consideration of the foregoing, the Purchase
Agreement is amended as follows:
1. Amendment to the Purchase Agreement. The Purchase Agreement is
amended as follows:
(a) By deleting Paragraph 1(a) of the Purchase Agreement and
substituting the following in lieu thereof:
By deleting Paragraph 1(a) of the Purchase Agreement and substituting the
following in lieu thereof:
"(a) The Company agrees to issue and sell to the Purchaser and
the Purchaser agrees to purchase up to 38,462 shares of Common Stock at a price
of $6.50 per Share; provided, however, that the price per Share shall be
adjusted as follows: in the event the Company consummates a private placement of
Common Stock to one or more institutional investor(s) at a price below $6.50 per
share after the date hereof and on or before December 31, 2002, the price per
Share paid by the Purchaser shall be reduced to the price per share paid by such
institutional investor(s), but in no event shall the price per Share paid by the
Purchaser be adjusted below $3.00 per Share.
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2. Effect of Amendment. This Amendment is intended to modify the
provisions of the Purchase Agreement. In the event that there is a conflict
between the terms of this Amendment and the Purchase Agreement, the parties
intend that the provisions of this Amendment should govern their respective
rights and obligations. Except as hereby amended, all other terms and conditions
of the Purchase Agreement remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Amendment to Securities Purchase Agreement to be duly executed as of the date
first written above.
COMPANY:
ESSEX CORPORATION
By: s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
PURCHASER:
GLOBAL ENVIRONMENT STRATEGIC
TECHNOLOGY PARTNERS, L.P.
By: /s/ H. Xxxxxxx Xxxxxxx
------------------------------
Name:
Title:
