WWW.EXFILE.COM, INC. -- 14860 -- N.Y. LIFE CAPITAL PARTNERS -- EXHIBIT 10 TO SCHEDULE 13D/A
EXHIBIT
10
CONVERSION,
TENDER AND VOTING AGREEMENT
THIS
CONVERSION, TENDER AND VOTING AGREEMENT (this “Agreement”),
dated
as of January 20, 2007, is made and entered into by and among QinetiQ
North America Operations, LLC,
a
Delaware limited liability company (“Parent”), Apollo
Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent
(“Merger
Sub”,
and
together with Parent, the “Buyer
Parties”),
Analex Corporation, a Delaware corporation (the “Company”),
and
the persons listed on Schedule
I
hereto
(collectively, the “Security
Holders”).
WHEREAS,
simultaneously with the execution and delivery of this Agreement, Parent, Merger
Sub and the Company have entered into an Agreement and Plan of Merger, dated
as
of the date hereof (as it may be amended from time to time, the “Merger
Agreement”),
pursuant to which (a) Merger Sub will make a cash tender offer for all of
the outstanding shares of the Company’s common stock, par value $0.02 per share
(the “Common
Stock”),
subject to the terms and conditions of the Merger Agreement (such offer as
it
may be amended from time to time as permitted under the Merger Agreement, the
“Offer”),
and
(b) Merger Sub will be merged with and into the Company (the “Merger”);
WHEREAS,
in connection with the Offer and the Merger, and subject to the terms and
conditions of this Agreement, each Security Holder has irrevocably agreed to
(i)
convert, effective as of the Expiration Date, (A) each such Security Holder’s
convertible secured subordinated promissory notes issued by the Company on
December 9, 2003 (“Series
A Notes”
and
collectively with the Series A Preferred and Series B Preferred, the
“Convertible
Instruments”)
into
shares of Series A Preferred and (B) each such Security Holder’s Series A
Preferred and Series B Preferred (including any Series A Preferred issued upon
conversion of the Series A Notes) of the Company into shares of Common Stock,
(ii) tender such Common Stock (including any Common Stock acquired upon
conversion or exercise, as applicable, of the Convertible Instruments) in
response to the Offer, and (iii) vote such Convertible Instruments and/or Common
Stock, as applicable, in favor of the Merger and against any Acquisition
Proposal;
WHEREAS,
in connection with the Offer and the Merger, and subject to the terms and
conditions of this Agreement, each Security Holder has agreed to convert for
cash each such Security Holder’s Series A Common Stock Warrants (“Series
A Warrants”)
and
Series B Common Stock Warrants (“Series
B Warrants”),
as
described in Section 5.2(b)(ii) of the Company Disclosure Schedule
(collectively, the “Company Warrants”);
WHEREAS,
as an inducement to Buyer Parties to enter into the Merger Agreement and incur
the obligations set forth therein, Buyer Parties require each Security Holder
to
enter into this Agreement, and each Security Holder desires to enter into this
Agreement; and
WHEREAS,
capitalized terms used herein and not defined shall have the meanings specified
in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE
I: CONVERSION OR EXERCISE OF CONVERTIBLE INSTRUMENTS
Section
1.
(a)Conversion
of Series
A Preferred Stock.
Subject
to Section 1(e), each Security Holder that holds Series A Preferred hereby
irrevocably elects, consents and agrees (i) to convert each share of Series
A
Preferred that it holds into shares of Common Stock pursuant to and in
accordance with Section 5(b)(ii) of the Certificate of Designations, Powers,
Preferences and Rights of the Series A Convertible Preferred Stock (the
“Series
A Certificate”),
effective as of the
Expiration Date, provided,
that
on such
Expiration Date Merger Sub accepts for payment all Shares validly tendered
and
not withdrawn pursuant to the Offer (together with the additional conversion
of
Series A Preferred Stock contemplated by Section 1(c) below, the “Series
A Conversion”)
and
(ii) that, pursuant to Section 4(d) of the Series A Certificate, the
transactions contemplated by the Merger Agreement (including the Offer and
the
Merger) shall not be treated as a liquidation, dissolution or winding up within
the meaning of Section 4 of the Series A Certificate. The number of shares
of
Common Stock issuable upon the Series A Conversion to each holder of Series
A
Preferred Stock on the date hereof is set forth next to each such holder’s name
on Schedule
I
hereto.
In accordance with Section 5(b)(ii) of the Series A Certificate, the Company
agrees to pay the holders of Series A Preferred the accrued and unpaid dividends
through the date of conversion, if any, on the Series A Preferred in cash on
the
Expiration Date. The Company and the holders of the Series A Preferred hereby
agree that this Agreement shall be deemed an effective Notice of Conversion
(as
defined in the Series A Certificate) and the delivery of Certificates (as
defined below) representing the Series A Preferred to the Company concurrently
with the execution and delivery of this Agreement shall be deemed to satisfy
any
and all obligations of the holders thereof under Section 5(c) of the Series
A
Certificate with respect to such conversion, and no further action on the part
of the holders thereof shall be required. Each of the Company and the holders
of
the Series A Preferred hereby waive any and all provisions of the Series A
Certificate regarding the requirements and mechanics of such conversion,
including without limitation, the holders’ of Series A Preferred right to
receive notice and the requirement of the Company to deliver certificates
representing the shares of Common Stock issuable upon conversion thereof, and
instead shall only be entitled to receive the Offer Price per share of Common
Stock. Each holder of Series A Preferred acknowledges and agrees that the
Company may, but is not required to, issue certificates representing shares
of
Common Stock issuable upon the Series A Conversion, and if the Company
determines not to issue such certificates, the certificates representing the
Series A Preferred shall represent shares of Common Stock after the conversion
for all purposes, including the Offer and the Merger. Subject to Section 1(e)
hereof, the Company shall determine the exact time of day on the Expiration
Date
in which such conversion shall be effective.
(b)Conversion
of Series B Preferred Stock.
Subject
to Section 1(e), each Security Holder that holds Series B Preferred hereby
irrevocably elects, consents and agrees (i) to convert each share of Series
B
Preferred that it holds into shares of Common Stock pursuant to and in
accordance with Section 5(b)(ii) of the Certificate of Designations, Powers,
Preferences and Rights of the Series B Convertible Preferred Stock (the
“Series
B Certificate”),
effective as of the Expiration Date, provided,
that
on such
Expiration Date Merger Sub accepts for payment all Shares validly tendered
and
not withdrawn pursuant to the Offer (the “Series
B Conversion”
and
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together
with the Series A Conversion, the “Stock
Conversion”)
and
(ii) that, pursuant to Section 4(d) of the Series B Certificate, the
transactions contemplated by the Merger Agreement (including the Offer and
the
Merger) shall not be treated as a liquidation, dissolution or winding up within
the meaning of Section 4 of the Series B Certificate. The number of shares
of
Common Stock issuable to each such holder of Series B Preferred upon the
conversion described in the immediately preceding sentence is set forth next
to
each such holder’s name on Schedule
I
hereto.
In accordance with Section 5(b)(ii) of the Series B Certificate, the Company
agrees to pay the holders of Series B Preferred the accrued and unpaid dividends
through the date of conversion, if any, on the Series B Preferred in cash on
the
Expiration Date. The Company and the holders of the Series B Preferred Stock
hereby agree that this Agreement shall be deemed an effective Notice of
Conversion (as defined in the Series B Certificate) and the delivery of
Certificates (as defined below) representing the Series B Preferred to the
Company concurrently with the execution and delivery of this Agreement shall
be
deemed to satisfy any and all obligations of the holders thereof under Section
5(c) of the Series B Certificate with respect to such conversion, and no further
action on the part of the holders thereof shall be required. Each of the Company
and the holders of the Series B Preferred hereby waive any and all provisions
of
the Series B Certificate regarding the requirements and mechanics of such
conversion, including without limitation, the holders’ of Series B Preferred
right to receive notice and the requirement of the Company to deliver of
certificates representing the shares of Common Stock issuable upon conversion
thereof, and instead shall only be entitled to receive the Offer Price per
share
of Common Stock. Each holder of Series B Preferred acknowledges and agrees
that
the Company may, but is not required to, issue certificates representing shares
of Common Stock issuable upon the Series B Conversion, and if the Company
determines not to issue such certificates, the certificates representing the
Series B Preferred shall represent shares of Common Stock after the conversion
for all purposes, including the Offer and the Merger. Subject to Section 1(e)
hereof, the Company shall determine the exact time of day on the Expiration
Date
in which such conversion shall be effective.
(c)Conversion
of Series A Notes.
Subject
to Section 1(e), each Security Holder that holds a Series A Note hereby
irrevocably elects, consents and agrees to convert each Series A Note (including
all accrued but unpaid interest on such notes)that
it
holds into shares of Series A Preferred pursuant to and in accordance with
Section 1.3 of the Series A Note, effective as of the Expiration Date (the
“Note
Conversion”).
The
Security Holder hereby agrees that (i) the Company will be deemed to have
offered to prepay the applicable Series A Note pursuant to Section 1.3 of the
Series A Note, (ii) each Security Holder that holds a Series A Note hereby
elects to be prepaid by conversion pursuant to clause (ii) of Section 1.3(a)
of
the Series A Note whereby each such holder’s Series A Note will be converted
into Series A Preferred Stock in accordance with Section 1.3 of the Series
A
Note, and (iii) each Security Holder that holds a Series A Note hereby waives
any and all provisions of the Series A Notes regarding the requirements and
mechanics of such conversion, including without limitation, the right to receive
notice, the condition precedent that there shall be in effect a registration
statement filed with the Securities and Exchange Commission with respect to
the
underlying shares, and the requirement of the Company to deliver certificates
representing the shares of Series A Preferred issuable upon conversion thereof.
In accordance with Section 3 of each the Series A Note, the Company will pay
to
each holder cash in lieu of fractional shares that such holder of Series A
Notes
would otherwise be entitled to receive upon the Note Conversion. Each holder
of
Series A Notes acknowledges and agrees that the Company may, but is not required
to, issue certificates
3
representing
shares of Series A Preferred issuable upon the Note Conversion, and if the
Company determines not to issue such certificates, the certificates representing
the Series A Note shall represent shares of Series A Preferred after the Note
Conversion for all purposes. Each holder of a Series A Note hereby irrevocably
elects, consents and agrees to contemporaneously convert the Series A Preferred
it receives in the Note Conversion in accordance with Section 1(a) above. The
Company and each holder of a Series A Note agrees that the conversion of Series
A Preferred shall be on the same terms and conditions as set forth in Section
1(a) with the same force and effect as if each holder of a Series A Note was
a
holder of Series A Preferred share as of the date hereof. Subject to Section
1(e) hereof, the Company shall determine the exact time of day on the Expiration
Date in which both such conversions shall be effective. Effective immediately
upon the receipt by each Security Holder that holds a Series A Note of the
Offer
Price for each share of Common Stock tendered pursuant to this Agreement, all
pledges, guarantees, security interests, liens and other encumbrances related
to
the Series A Notes or arising out of any agreement entered into in connection
with the issuance of the Series A Notes granted to each Security Holder that
holds a Series A Note shall automatically be deemed to be terminated and
released. Each Security Holder that holds a Series A Note will promptly execute
and deliver to the Company (or its legal counsel) any such lien releases,
mortgage releases, discharges of security interests (including in respect of
intellectual property), pledges and guarantees and other similar discharge
or
release documents (and, if applicable, in recordable form) as are necessary
to
release, as of record, the security interests and all notices of security
interests and liens previously filed by each Security Holder that holds a Series
A Note with respect to the Series A Notes or any agreement entered into in
connection with the issuance of the Series A Notes, provided,
however,
that
such releases shall be filed and become effective only
following the receipt by each Security Holder that holds a Series A Note of
the Offer Price for each share of Common Stock tendered pursuant to this
Agreement.Upon
the
receipt by each Security Holder that holds a Series A Note of the Offer Price
for each share tendered pursuant to this Agreement, (1) each Security Holder
that holds a Series A Note hereby authorizes the Company (or its legal counsel)
to prepare and file all such UCC and other termination statements and related
filings as may be necessary to effectuate the provisions of this Section 1(c),
(2) each Security Holder that holds a Series A Note shall deliver to the Company
(or its legal counsel) all instruments evidencing pledged debt, and (3) to
the
extent recordation of any applicable discharge or release document cannot be
done by the Company (or its legal counsel), each Security Holder that holds
a
Series A Note, if requested to do so in writing by the Company,will
promptly record such discharge or release document in the appropriate
jurisdiction.
(d)
Conversion
of Company Warrants.
Subject
to Section 1(e) hereof, each Security Holder shall convert for cash all of
such
Security Holder’s Company Warrants, and shall be entitled to receive cash
payments with respect to such Company Warrants from the Company as of the
Effective Time, on the terms and conditions set forth in Section 4.4(e) of
the
Merger Agreement (the “Warrant
Conversion”),
providedhowever,
that if
the exercise price per share of any such Company Warrant is equal to or greater
than the Offer Price (as defined in the Merger Agreement), such Company Warrant
shall be canceled without any cash payment being made in respect thereof. Each
of the Company and the holders of the Company Warrants hereby waive any and
all
provisions of the Company Warrants regarding the requirements and mechanics
of
the exercise of such warrants, including without limitation, the holders’ of
Company Warrants right to receive notice and the requirement of the Company
to
deliver certificates representing
4
the
shares of Common Stock issuable upon exercise thereof, and instead shall only
be
entitled to receive the consideration with respect to such Company Warrants
as
set forth in Section 4.4(e) of the Merger Agreement.
(e)
Stock Conversion, Note Conversion and Warrant Conversion.
In
addition to being subject to the other terms and conditions set forth in this
Agreement, the Stock Conversion, Note Conversion and Warrant Conversion shall
each be subject to the satisfaction or waiver of each of the conditions to
the
Offer set forth on Annex
A
to the
Merger Agreement, other than the Minimum Condition, which shall not operate
as a
condition or otherwise apply to the Stock Conversion, Note Conversion or Warrant
Conversion but which shall be otherwise satisfied in accordance with the terms
of this Agreement.
ARTICLE
II: TENDER OF COMMON STOCK
Section
2.
(a)
Each
Security Holder hereby irrevocably instructs the Company to tender, on its
behalf, the Common Stock beneficially owned by such holder into the Offer
immediately upon the conversions contemplated in Article I and not to withdraw,
or cause to be withdrawn, from the Offer such Common Stock at any time, except
in accordance with the Merger Agreement. Each Security Holder shall not tender
(or agree to tender) the Common Stock or any Convertible Instrument into any
exchange or tender offer commenced by a third party other than Parent or Merger
Sub in accordance with the Merger Agreement.
(b) Subject
to each Security Holder’s written consent to the content of the disclosure,
which consent shall not be unreasonably withheld, each Security Holder hereby
severally agrees to permit the Company and the Buyer Parties to publish and
disclose in the Offer Documents (and any other press release or announcement
that may be issued in accordance with the terms of the Merger Agreement) and,
if
approval of the stockholders of the Company is sought or given under applicable
law, the Proxy Statement (including all documents and schedules filed with
the
SEC), such Security Holder’s identity and intent with respect to the Convertible
Instruments and the Common Stock and the nature of such Security Holder’s
commitments, arrangements, and understandings under this Agreement.
(c) Each
Security Holder hereby irrevocably constitutes and appoints the Company as
its
true and lawful agent and attorney-in-fact with the full power and authority
to
act on behalf of the Security Holder with respect to the matters set forth
in
Sections 2(c)(i) and 2(c)(ii) hereof. In furtherance thereof, each
Security Holder shall, on the date hereof, deliver to the Company all
certificates and notes, as applicable, in proper deliverable form (in
accordance with Section 5(c) of the Series A Certificate, or 5(c) of the Series
B Certificate, as applicable), representing all of such Security Holder’s
Convertible Instruments (the “Certificates”).
The
Certificates representing the Convertible Instruments are to be held by the
Company as custodian for the account of the undersigned and are to be converted,
exercised, tendered and voted by the Company in accordance with this Agreement.
Each Security Holder agrees to deliver to the Company such additional
documentation as the Company or its counsel may reasonably request to effectuate
or confirm compliance with any of the provisions hereof, to be in form and
5
substance
reasonably satisfactory in all respects to the Company. The Company is hereby
authorized and directed to:
(i)
hold the
Certificates deposited with the Company hereunder in its custody,
and
(ii) on the
Expiration Date (provided,
that
on such
Expiration Date Merger Sub accepts for payment all Shares validly tendered
and
not withdrawn pursuant to the Offer) take all necessary action to (A) effect
the
Note and Stock Conversion pursuant to Article I hereof, (B) tender and not
withdraw, or cause to be withdrawn from the Offer at any time (except in
accordance with the Merger Agreement), all of the Security Holder’s Common Stock
in response to the Offer pursuant to this Article II (including the
execution and delivery on behalf of such holder any letters of transmittal
or
similar documents necessary to confirm or effect the surrender of such holder’s
Common Stock in accordance with the terms of the Offer), and (C) vote such
Security Holder’s Convertible Instruments and/or Common Stock pursuant to
Article III hereof.
(d)
The
custody arrangement set forth in Section 2(c) and the Company’s authority
hereunder are irrevocable and are not subject to termination (except as set
forth in Article VIII) by the Security Holder or by operation of law, whether
by
the dissolution or liquidation of any Security Holder or the occurrence of
any
other event.
ARTICLE
III: VOTING OF PREFERRED AND COMMON STOCK
Section
3.
(a)
At
every
meeting of the stockholders of the Company called, and at every adjournment
or
postponement thereof, and on every action or approval by written consent of
the
stockholders of Company, each with respect to the Contemplated Transactions
(as
defined below) or any Acquisition Proposal, each Security Holder (in such
Security Holder’s capacity as a stockholder of the Company) shall, or shall
cause the holder of record on any applicable record date to, vote its shares
of
Series A Preferred, Series B Preferred and/or Common Stock, as
applicable:
(i)
in favor
of the Merger and the adoption of the Merger Agreement, and in favor of each
of
the other actions contemplated by the Merger Agreement (the “Contemplated
Transactions”);
and
(ii)
against
any action or agreement which would reasonably be expected to impede, interfere
with or prevent the Merger, including, but not limited to, any Acquisition
Proposal.
(b) In
the
event that a meeting of the stockholders of the Company is held, each Security
Holder shall, or shall cause the holder of record on any applicable record
date
to, appear at such meeting or otherwise cause its shares of Series A Preferred,
Series B Preferred and/or Common Stock, as applicable, to be counted as present
thereat for purposes of establishing a quorum.
6
(c) The
Security Holder shall not enter into any agreement or understanding with any
Person to vote or give instructions in any manner inconsistent with the terms
of
this Section 3.
(d) Subject
to Section 2 of this Agreement, in furtherance of the agreements contained
in Section 3(a) of this Agreement and as security for such agreements, each
Security Holder hereby irrevocably appoints Parent and Merger Sub, or any
nominee designated by Parent or Merger Sub, and each of them individually,
as
the sole, exclusive, true and lawful Proxy (the “Proxy”)
of
such Security Holder, to vote each of such Security Holder’s Series A Preferred,
Series B Preferred, and/or Common Stock, as applicable, as the Proxy of such
Security Holder, for and in the name, place and stead of such Security Holder,
with full power of substitution and resubstitution, (i) in favor of the
adoption of the Merger Agreement and approval of the Merger and the Contemplated
Transactions, (ii) against any action or agreement which would reasonably
be expected to impede, interfere with or prevent the Merger, including, but
not
limited to, any Acquisition Proposal, and (iii) in the discretion of the
Proxy, with respect to any proposed postponements or adjournments of any annual
or special meeting of the stockholders of the Company held in connection with
any of the foregoing. Each Security Holder hereby affirms and agrees that the
irrevocable proxy set forth in this Section 3(d) is given in connection with
the
execution of the Merger Agreement, and that such irrevocable proxy is given
to
secure the performance of the duties of such Security Holder under this
Agreement. Each Security Holder hereby further affirms and agrees that the
irrevocable proxy is coupled with an interest and, except as set forth in this
Section 3(d) or Section 3(e) of this Agreement, is intended to be
irrevocable in accordance with the provisions of Section 212 of the
Delaware General Corporation Law. If for any reason the Proxy granted herein
is
not irrevocable, then such Security Holder agrees that it shall vote such
Security Holder’s Series A Preferred, Series B Preferred and/or Common Stock, as
applicable, in accordance with this Section 3 as instructed by Parent in
writing. Each Security Holder shall promptly deliver to Parent any proxy cards
that such Security Holder receives with respect to the voting of its shares
of
Series A Preferred, Series B Preferred and/or Common Stock. Each Security
Holder hereby
represents that any proxies heretofore given in respect of such Security
Holder’s Series A Preferred, Series B Preferred and/or Common Stock, if any, are
revocable, and hereby revokes such proxies.
(e) The
parties acknowledge and agree that nothing contained in this Agreement shall
restrict, limit or prohibit any director who has been designated by a Security
Holder to the board of directors of the Company from exercising (in his or
her
capacity as a director of the Company) his or her fiduciary duties as a
director.
ARTICLE
IV: REPRESENTATIONS AND WARRANTIES OF EACH SECURITY HOLDER
Section
4.Each
Security Holder hereby severally, and not jointly, represents and warrants
(as
to such Security Holder) as follows:
(a)
Authority.
Such
Security Holder has all necessary legal capacity, power, and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement
by
such Security Holder and the consummation of the transactions contemplated
by
this Agreement have been duly authorized by all necessary action on the part
of
such Security Holder and, assuming the
7
due
authorization, execution, and delivery of this Agreement by the Company, Parent,
Merger Sub and each other Security Holder, this Agreement constitutes a legal,
valid, and binding obligation of such Security Holder, enforceable against
such
Security Holder in accordance with its terms, except as such enforceability
may
be limited by bankruptcy, reorganization, fraudulent conveyance, insolvency,
moratorium, or similar laws affecting the rights and remedies of creditors
generally and by equitable principles of general application (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(b)Ownership
of Convertible Instruments.
Such
Security Holder is the record and beneficial owner of, and has good title to,
such Security Holder’s Convertible Instruments listed beside such Security
Holder’s name on Schedule I
attached
hereto, free and clear of all claims, liens, encumbrances and security interests
of any nature whatsoever other than those under (i) applicable securities laws,
and (ii) that certain Co-Sale Agreement, dated as of May 22, 2004, by and among
the Security Holders and the Company, and, other than Common Stock, such
Security
Holder does
not
own, of record or beneficially, any shares of capital stock of the Company
or
other instruments convertible into capital stock of the Company other than
(i)
the Security Holder’s Convertible Instruments subject to this Agreement and (ii)
the Company Warrants. Other than as set forth in that certain Amended and
Restated Stockholders’ Agreement, dated as of May 28, 2004, by among the
Security Holders, the Company and certain other parties, each Security Holder
has sole voting power and sole power to issue instructions with respect to
the
matters set forth in this Agreement, sole power of disposition with respect to
dispositions contemplated by this Agreement, and sole power to agree to all
of
the matters set forth in this Agreement, in each case with respect to all of
such Security Holder’s Convertible Instruments, with no material limitations,
qualifications, or restrictions on such rights, subject only to applicable
securities laws and the terms of this Agreement.
(c)Consents
and Approvals; No Violation.
(i) Except as may be set forth in the Merger Agreement (including, without
limitation, filings as may be required under applicable securities laws), no
filing with, and no permit, authorization, consent, or approval of, any
Governmental Entity is necessary for the execution of this Agreement by such
Security Holder and the consummation by such Security Holder of the transactions
contemplated by this Agreement, and (ii) none of the execution and delivery
of
this Agreement by such Security Holder, the consummation by such Security Holder
of the transactions contemplated by this Agreement or compliance by such
Security Holder with any of the provisions of this Agreement shall
(A) conflict with or result in any breach of any applicable documents to
which such Security Holder is a party, (B) result in a violation or breach
of, or constitute (with or without notice or lapse of time, or both) a default
(or give rise to any third party right of termination, cancellation, amendment,
or acceleration) under any of the terms, conditions, or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement, or other instrument or obligation of any kind to
which
such Security Holder is a party, or (C) subject to compliance with filing
requirements as may be required under applicable securities laws, violate any
order, writ, injunction, decree, judgment, statute, rule, or regulation
applicable to such Security Holder, except in each case, where the absence
of
filing or authorization, conflict, violation, breach, or default would not
materially impair the ability of such Security Holder to consummate the
transactions contemplated by this Agreement.
8
(d)No
Finder’s Fees.
Except
as contemplated by the Merger Agreement, no broker, investment banker, financial
advisor, or other person is entitled to any broker’s, finder’s, financial
advisor’s, or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or
on behalf of such Security Holder.
ARTICLE
V: REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Section
5.
Parent
and Merger Sub hereby represent and warrant as of the date of this Agreement
as
follows:
(a)
Organization.
Each of
Parent and Merger Sub is a corporation duly organized, validly existing, and
in
good standing under the laws of the jurisdiction of its
incorporation.
(b)Corporate
Authorization;
Validity
of Agreement; Necessary Action.
Parent
and Merger Sub have the corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by Parent and Merger
Sub
and the consummation of the transactions contemplated by this Agreement have
been duly authorized by all necessary action on the part of Parent and Merger
Sub, and, assuming the due authorization, execution and delivery thereof by
the
Company and each of the Security Holders, constitutes a valid and legally
binding agreement of Parent and Merger Sub enforceable against each of them
in
accordance with its terms, except as such enforcement may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting or relating to enforcement of creditors’ rights generally, and
(ii) general equitable principles.
(c)Consents
and Approvals; No Violation.
The
execution and delivery of this Agreement by each of Parent and Merger Sub and
the consummation by each of Parent and Merger Sub of the Offer, the Merger
and
the other transactions contemplated by the Merger Agreement do not (i) violate,
conflict with or result in a breach of, (ii) constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
(iii) result in the termination of, (iv) accelerate the performance required
by
Parent or any of its Subsidiaries under, (v) result in a right of termination
or
acceleration under, (vi) give rise to any obligation to make payments or provide
compensation under, (vii) result in the creation of any Lien upon any of the
properties or assets of Parent or Merger Sub under, or (viii) give rise to
any
obligation to obtain any third party consent or provide any notice to any Person
under, any of the terms, conditions or provisions of (A) the respective
charters, bylaws, partnership agreements, trust declarations, or other similar
organizational instruments of Parent or any of its Subsidiaries, (B) any
statute, law, ordinance, rule, regulation, judgment, decree, order, injunction,
writ, permit or license of any court or governmental authority applicable to
Parent or any of its Subsidiaries or any of their respective properties or
assets, or (C) any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease, partnership agreement, joint
venture agreement or other instrument, obligation or agreement of any kind
to
which Parent or any of its Subsidiaries is now a party or by which Parent or
any
of its Subsidiaries or any of their respective properties or assets may be
bound
or affected, except with respect to clauses (B) and (C), such triggering of
payments, Liens, encumbrances, filings, notices, Permits, authorizations,
9
consents,
approvals, violations, conflicts, breaches or defaults which would not prevent
or delay the consummation of the Offer, the Merger or the other transactions
contemplated by the Merger Agreement, including this Agreement.
ARTICLE
VI: REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section
6.
The
Company hereby represents and warrants as of the date of this Agreement as
follows:
(a)
Organization.
The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation.
(b)Corporate
Authorization;
Validity
of Agreement; Necessary Action.
The
Company has the corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement.
The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated by this Agreement have been duly authorized by
all
necessary action on the part of the Company and, assuming the due authorization,
execution and delivery thereof by Parent, Merger Sub and each of the Security
Holders, this Agreement constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as such
enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to enforcement of
creditors’ rights generally, and (ii) general equitable principles.
(c)Consents
and Approvals; No Violation.
Except
as set forth in the Merger Agreement, the execution and delivery of this
Agreement by the Company does not (i) violate, conflict with or result in a
breach of, (ii) constitute a default (or an event which, with notice or lapse
of
time or both, would constitute a default) under, (iii) result in the termination
of, (iv) accelerate the performance required by the Company or any of its
Subsidiaries under, (v) result in a right of termination or acceleration under,
(vi) give rise to any obligation to make payments or provide compensation under,
(vii) result in the creation of any Lien upon any of the properties or assets
of
the Company under, or (viii) give rise to any obligation to obtain any third
party consent or provide any notice to any Person under, any of the terms,
conditions or provisions of (A) the respective charters or bylaws of the Company
or any of its Subsidiaries, (B) any statute, law, ordinance, rule, regulation,
judgment, decree, order, injunction, writ, Permit or license of any court or
governmental authority applicable to the Company or any of its Subsidiaries
or
any of their respective properties or assets, other than Required Statutory
Approvals, or (C) any note, bond, mortgage, indenture, deed of trust, license,
franchise, Permit, concession, contract, lease, partnership agreement, joint
venture agreement or other agreement to which the Company or any of its
Subsidiaries is now a party except, with respect to clauses (B) and (C), such
triggering of payments, Liens, encumbrances, filings, notices, Permits,
authorizations, consents, approvals, violations, conflicts, breaches or defaults
which would not prevent or delay the consummation of the Offer, the Merger
or
the other transactions contemplated by the Merger Agreement, including this
Agreement, or would not reasonably be expected to have, a Material Adverse
Effect.
10
ARTICLE
VII: COVENANTS OF EACH SECURITY HOLDER
Section
7.
Each
Security Holder severally covenants and agrees as follows:
(a)
Restriction
on Transfer, Proxies, and Non-Interference.
Except
as contemplated by this Agreement or the Merger Agreement, during the period
beginning from the execution and delivery by the parties of this Agreement
through the earlier of (1) the Effective Time or (2) the termination of the
Merger Agreement, such Security Holder shall not (i) directly or
indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign,
or
otherwise dispose of, or enter into any contract, option, or other arrangement
or understanding with respect to, or consent to the offer for sale, transfer,
tender, pledge, encumbrance, assignment, or other disposition of, any or all
of
such Security Holder’s Convertible Instruments (and, upon conversion or
exercise, as applicable, of such Convertible Instruments, any or all of such
Security Holder’s Common Stock), (ii) grant any proxies or powers of
attorney, or any other authorization or consent with respect to any or all
of
such Security Holder’s Convertible Instruments (and, upon conversion or
exercise, as applicable, of such Convertible Instruments, any or all of such
Security Holder’s Common Stock) that could reasonably be expected to impede,
interfere with or prevent the Merger, (iii) deposit any of such Security
Holder’s Convertible Instruments (and, upon conversion or exercise, as
applicable, of such Convertible Instruments, any or all of such Security
Holder’s Common Stock) into a voting trust or enter into a voting agreement with
respect to any of such Security Holder’s Convertible Instruments (and, upon
conversion or exercise, as applicable, of such Convertible Instruments, any
or
all of such Security Holder’s Common Stock), or (iv) take any action that
would make any representation or warranty of such Security Holder contained
in
this Agreement untrue or incorrect in any material respect or that would
reasonably be expected to have the effect of preventing or disabling or delaying
such Security Holder from performing such Security Holder’s obligations under
this Agreement.
(b)
Stop
Transfer; Changes in Subject Shares.
Such
Security Holder agrees with, and covenants to, the Company, Parent and Merger
Sub that (i) this Agreement and the obligations hereunder shall attach to
such Security Holder’s Convertible Instruments (and, upon conversion or
exercise, as applicable, of such Convertible Instruments, any or all of such
Security Holder’s Common Stock) and shall be binding upon any person or entity
to which legal or beneficial ownership shall pass, whether by operation of
law
or otherwise, and (ii) such Security Holder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate
or
uncertificated interest representing any or all of such Security Holder’s
Convertible Instruments (and, upon conversion or exercise, as applicable, of
such Convertible Instruments, any or all of such Security Holder’s Common
Stock), unless such transfer is made in compliance with this
Agreement.
(c)Appraisal
Rights.
Each
Security Holder shall not exercise any rights (including, without limitation,
under Section 262 of the Delaware General Corporation Law) to demand
appraisal of any Common Stock that may arise with respect to the
Merger.
(d)No
Solicitation.
(i)
During the term of this Agreement, each Security Holder agrees that it will
not,
and each of its officers, directors, employees, agents or retained
representatives (each, a “Representative”)
will
not, directly or indirectly (A) solicit, initiate or knowingly facilitate or
11
encourage
the making, submission, or reaffirmation by any Person of any inquiry, proposal
or offer with respect to, that constitutes, or would reasonably be expected
to
lead to, any Acquisition Proposal, (B) enter into discussions or negotiations
with, or provide access to the non-public properties, books and records or
any
confidential information or data relating to the Company to, any Person relating
to an Acquisition Proposal, or (C) enter into any agreement, understanding,
letter or intent or arrangement with respect to any Acquisition Proposal.
(ii)
Each
Security Holder agrees that it will notify the Company promptly (and in any
event within forty-eight (48) hours of the Security Holder’s receipt) of any
Acquisition Proposal, including the material terms of the Acquisition Proposal,
which the Security Holder or any Representatives receives after the date hereof,
and shall keep the Company informed on a prompt basis as to the status of and
any material developments regarding any such proposal. No Security Holder shall,
after the date of this Agreement, enter into any confidentiality agreement
that
would prohibit them from providing such information to the Company.
ARTICLE
VIII: TERMINATION
Section
8.
This
Agreement and the covenants and agreements set forth in this Agreement shall
automatically (without any further action of the parties) terminate and be
of no
further force and effect upon the termination of the Merger
Agreement. If
(i)
this Agreement shall be terminated pursuant to this Section 8, or (ii) for
any reason after the satisfaction of the conditions to the Offer described
in
Section 1(e) hereof Merger Sub does not accept and promptly thereafter pay
for
the shares of Common Stock issuable upon conversion of the Convertible
Instruments, no Note Conversion or Stock Conversion shall occur, and the Company
shall promptly return the Certificates to the applicable Security Holders.
If
(i) this Agreement shall be terminated pursuant to this Section 8, or (ii)
for
any reason after the satisfaction of the conditions to the Offer described
in
Section 1(e) hereof, the payments with respect to the Company Warrants are
not
made in accordance with Section 4.4(e) of the Merger Agreement, the Company
shall promptly return the Company Warrants to the applicable Security
Holder.
ARTICLE
IX: MISCELLANOUS
Section
9.
(a)
Further
Assurances.
From
time to time, at any other party’s reasonable request and without further
consideration, each party shall execute and deliver such additional documents
and take all such further lawful action as may be reasonably requested to
consummate and make effective the transactions contemplated by this
Agreement.
(b)Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties with respect to
the
subject matter of this Agreement and supersedes all other prior agreements
and
understandings, both written and oral, between the parties with respect to
the
subject matter of this Agreement.
(c)
Assignment.
This
Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of the other parties.
12
(d)Amendments
and Waivers.
This
Agreement may not be amended, changed, supplemented, waived, or otherwise
modified or terminated, except upon the execution and delivery of a written
agreement executed by all of the relevant parties.
(e)Notices.
All
notices, requests, claims, demands, and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly received
if
so given) by hand delivery, telegram, telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any courier
service, such as Federal Express, providing proof of delivery. All
communications under this Agreement shall be delivered to the respective parties
at the following addresses:
If
to the
Security Holders: At the address set forth beside each Security Holder’s name
listed on Schedule 1.
or
to
such other address as the person to whom notice is given may have previously
furnished to the others in writing in the manner set forth above.
(f)Severability.
Whenever possible, each provision or portion of any provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law but if any provision or portion of 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 portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed, and enforced
in
such jurisdiction as if such invalid, illegal, or unenforceable provision or
portion of any provision had never been contained in this
Agreement.
(g)Specific
Performance.
Each of
the parties recognizes and acknowledges that a breach by it of any covenants
or
agreements contained in this Agreement will cause the other parties to sustain
damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties agrees that, in the event of any
such
breach, the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled at law or
in
equity.
(h)Remedies
Cumulative.
All
rights, powers, and remedies provided under this Agreement or otherwise
available in respect of this Agreement at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power,
or
remedy by such party.
(i)No
Third Party Beneficiaries.
This
Agreement is not intended to be for the benefit of, and shall not be enforceable
by, any person who or which is not a party to this Agreement.
(j)No
Waiver.
The
failure of any party to exercise any right, power, or remedy provided under
this
Agreement or otherwise available in respect of this Agreement at law or in
equity, or to insist upon compliance by any other party with its obligations
under this Agreement, and any custom or practice of the parties at variance
with
the terms of this Agreement shall not constitute a waiver by such party of
its
right to exercise any such or other right, power, or remedy or to demand such
compliance.
(k)Governing
Law.
This
Agreement shall be deemed a contract made under, and for all purposes shall
be
construed in accordance with, the internal laws of the State of Delaware without
regard to principles of conflicts of law.
(l)Descriptive
Headings.
The
descriptive headings used in this Agreement are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning
or
interpretation of this Agreement.
14
(m)Counterparts.
This
Agreement may be executed in two or more counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall
constitute one and the same agreement. Delivery of an executed counterpart
of a
signature page to this Agreement by telecopier shall be effective as delivery
of
a manually executed counterpart of this Agreement.
[SIGNATURE
PAGES FOLLOW]
15
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
PARENT:
QINETIQ
NORTH AMERICA OPERATIONS, LLC
By:
/s/
Duane Andrews
Name:
Duane
Andrews
Title:
CEO
MERGERSUB:
APOLLO
MERGER SUB INC.
By:
/s/
Duane Andrews
Name:
Duane
Andrews
Title:
President
THE
COMPANY:
ANALEX
CORPORATION
By:
/s/
Sterling E. Philips, Jr.
Name:
Sterling E. Phillips, Jr.
Title:
Chief Executive Officer
SECURITY
HOLDERS:
GENERAL
ELECTRIC PENSION TRUST
By:
GE
Asset Management Incorporated,
its
Investment Manager
By:
/s/
Daniel L. Furman
Name:
Daniel L. Furman
Title:
Vice President
NEW
YORK
LIFE CAPITAL PARTNERS II, L.P.
By:
NYLCAP Manager LLC,
its
Investment Manager
By:
/s/
John E. Schumacher
Name:
John E. Schumacher
Title:
Chief Executive Officer
PEQUOT
PRIVATE EQUITY FUND III, L.P.
By:
Pequot Capital Management, Inc.,
its
Investment Manager
By:
/s/
Carlos Rodrigues
Name:
Carlos Rodrigues
Title:
CFO, Pequot Ventures
[Signatures
Continue On The Following Page]
16
PEQUOT
OFFSHORE PRIVATE EQUITY PARTNERS III, L.P.
By:
Pequot Capital Management, Inc.,
its
Investment Manager
By:
/s/
Carlos Rodrigues
Name:
Carlos Rodrigues
Title:
CFO, Pequot Ventures
17
SCHEDULE
I
Name
and Address of
Security
Holder
Convertible
Instrument and Number Held by
Security
Holder as of the Date Hereof
Number
of Shares of Common Stock Issuable to Security Holder Upon the
Effectiveness of the Stock Conversion
*
The above figure represents shares issued upon conversion of principal. Interest
will be converted effective as of the
Expiration Date, provided, that on such Expiration Date Merger Sub accepts
for
payment all Shares validly tendered and not withdrawn pursuant to the
Offer.
