CUSIP No. 296744 10 5 13D Page 1 of 74
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 13D*
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
Essex Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
296744 10 5
(CUSIP Number)
James P. Gregory
1225 Eye Street, N.W., Washington, DC 20005 (202) 789-4500
(Name, address and telephone number of person
authorized to receive notices and communications)
September 8, 2000
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
----------------
*The remainder of this cover page shall be filled out for a Reporting
Person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not
be deemed to be "filed" for purposes of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes)
<PAGE>
CUSIP No. 296744 10 5 13D Page 2 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
GEF Optical Investment
Company, LLC
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
500,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,000,000
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
18.53%
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
OO
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 3 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
H. Jeffrey Leonard
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
NOT APPLICABLE
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
500,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,000,000
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
18.53%
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
IN
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 4 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Marie S. Minton
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
NOT APPLICABLE
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
500,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,000,000
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
18.53%
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
IN
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 5 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
James P. Gregory
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
NOT APPLICABLE
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
500,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,000,000
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
18.53%
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
IN
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 6 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Networking Ventures, LLC
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
500,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,000,000
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
18.53%
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
OO
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 7 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
John G. Hannon
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
PF
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
6,800
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
6,800
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
500,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
506,800
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
IN
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 8 of 74
--------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Caroline S. Pisano
--------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
--------------------------------------------------------------------------------
(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
PF
--------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
--------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
6,000
SHARES -------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,000,000
OWNED BY
-------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
6,000
REPORTING
-------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
506,000
-------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
--------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
--------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
--------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
IN
-----------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 296744 10 5 13D Page 9 of 74
Item 1. Security and Issuer.
This statement relates to the Common Stock (the "Common Stock") of
Essex Corporation, a Virginia corporation (the "Company"), and shares of Common
Stock issuable upon the conversion of Series B Convertible Preferred Stock of
the Company (the "Preferred Stock", and together with the Common Stock, the
"Stock"). The Company's principal executive offices are located at 9150 Guilford
Road, Columbia, MD 21046.
Item 2. Identity and Background.
(a) This statement is filed by:
(i) GEF Optical Investment Company, a Delaware limited
liability company ("GEF"), with respect to the shares of
Stock directly owned by it;
(ii) H. Jeffrey Leonard ("Mr. Leonard"), who serves as a
director of the managing member of GEF, with respect to the
shares of Stock directly owned by GEF;
(iii) Marie S. Minton ("Ms. Minton"), who serves as a director of
the managing member of GEF, with respect to the shares of
Stock directly owned by GEF;
(iv) James P. Gregory ("Mr. Gregory"), who serves as a director
of the managing member of GEF, with respect to shares of
Stock directly owned by GEF;
(v) Networking Ventures, LLC, a Maryland limited liability
company ("NV"), with respect to the shares of Stock
directly owned by it;
(vi) John G. Hannon ("Mr. Hannon"), who is a managing member of
NV, with respect to the shares of Stock directly owned by
NV and 6,800 shares of Common Stock directly owned by Mr.
Hannon; and
(vii) Caroline S. Pisano ("Ms. Pisano"), who serves as a managing
member of NV, with respect to the shares of Stock directly
owned by NV and 6,000 shares of Common Stock directly owned
by Ms. Pisano.
The foregoing persons are hereinafter sometimes collectively referred
to as the Reporting Persons". All disclosures herein with respect to any
Reporting Person are made only by such Reporting Person. Any disclosures herein
with respect to persons other than the Reporting Persons are made on information
and belief after making inquiry to the appropriate party.
(b) The address of the principal business and principal office of GEF,
Mr. Leonard, Ms. Minton and Mr. Gregory is 1225 Eye Street, N.W., Suite 900,
Washington, DC 20005. The address of the principal business and principal office
of NV, Mr. Hannon and Ms. Pisano is 8970 Route 108, Columbia, Maryland 21045.
(c) The principal business of each of GEF and NV is serving as a
private investment fund. Mr. Leonard, Ms. Minton and Mr. Gregory serve as
directors of the managing member of GEF. Mr. Hannon and Ms. Pisano serve as
managing members of NV.
(d) None of the Reporting Persons has, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) None of the Reporting Persons has, during the last five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and, as a result of such proceeding, was, or is subject
to, a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal or State securities laws
or finding any violation with respect to such laws.
(f) GEF is a Delaware limited liability company. NV is a Maryland
limited liability company. Mr. Leonard, Ms. Minton, Mr. Gregory, Mr. Hannon and
Ms. Hannon are each United States citizens.
<PAGE>
CUSIP No. 296744 10 5 13D Page 10 of 74
Item 3. Source and Amount of Funds and Other Consideration.
On September 8, 2000, each of GEF and NV acquired 125,000 shares of
Preferred Stock from the Company pursuant to a Securities Purchase Agreement
dated as of September 7, 2000 (the "Purchase Agreement"). A form of the Purchase
Agreement is attached hereto as Exhibit 1 and is incorporated herein by
reference. Each share of Preferred Stock is convertible into four shares of
Common Stock, subject to adjustment for stock splits, Common Stock dividends and
other recapitalizations and reorganizations. The purchase price for the
Preferred Stock was $4.00 per share, for an aggregate purchase price of
$1,000,000. In addition, each of GEF and NV received Warrants to purchase
1,000,000 shares of Common Stock (the "Warrants"), exercisable only on the
conditions described below in Item 6 - Contracts, Arrangements, Understandings
or Relationships with respect to Securities of the Issuer. A form of the Warrant
is attached hereto as Exhibit 2. Each of GEF and NV purchased the shares of
Preferred Stock using their respective working capital. On September 8, 2000,
Mr. Hannon purchased 4,800 shares of Common Stock at a price of $2.49 per share
and Ms. Pisano purchased 6,000 shares of Common Stock at a price of $2.50 per
share. On September 13, 2000, Mr. Hannon purchased 2000 shares of Common Stock
at a price of $4.8125 per share. These purchases were made in the open market,
using personal funds of such Reporting Persons.
Item 4. Purpose of the Transaction.
The purpose of the acquisition of the Preferred Stock by the Reporting
Persons was for investment and to give the Reporting Persons certain management
rights for purposes of maximizing the long-term value of the Company. Each of
GEF and NV has agreed on the terms provided in the Purchase Agreement to
purchase an additional 125,000 shares of Preferred Stock at a price of $4.00 per
share in quarterly installments of 31,250 shares each on December 15, 2000,
March 15, 2001, June 15, 2001 and September 15, 2001. The holders of Preferred
Stock are entitled to such number of votes as shall entitle them in the
aggregate to 51% of the total voting power of the capital stock of the Company,
except that the holders of Preferred Stock shall only have the right to one vote
for each share of Common Stock into which such holders' shares of Preferred
Stock are convertible in the case of a vote with respect to (i) a sale of all or
substantially all of the assets of the Company which values the Company at less
than $50,000,000 or (ii) a merger transaction in which the Company is to be
acquired which values the Company at less than $50,000,000. In addition, a
holder of Preferred Stock shall only be entitled to one vote for each share of
Common Stock into which such holder's shares of Preferred Stock are convertible
if the holders of Preferred Stock default on their obligations under the
Purchase Agreement to purchase additional Preferred Stock. So long as GEF and NV
have the 51% voting rights to which they are entitled under the terms of the
Preferred Stock, they have agreed to vote any shares of Common Stock owned by
them in the same proportions as shares of Common Stock are voted by the other
holders of Common Stock. Transfer of the Preferred Stock may only be made to
affiliates of GEF and NV. In connection with the purchase of the Preferred
Stock, Mr. Leonard, Mr. Hannon and Ms. Pisano were elected to the Board of
Directors of the Company and now comprise three of the Company's nine directors.
The Purchase Agreement also provides that GEF and NV may at any time request the
Company to convene a meeting of shareholders for the purpose of electing
designees of GEF and NV to fill a majority of the seats of the Company's Board
of Directors. The Reporting Persons anticipate
<PAGE>
CUSIP No. 296744 10 5 13D Page 11 of 74
that they will make such a request in connection with the Company's next annual
meeting of shareholders. If not sooner converted, the Preferred Stock shall be
automatically converted to Common Stock on September 8, 2002, at which time the
51% voting rights of the holders of Preferred Stock described above would cease
to be effective. The Reporting Persons reserve the right to acquire, or cause to
be acquired, additional securities of the Company, to dispose of, or cause to be
disposed of, such securities at any time or to formulate other purposes, plans
or proposals regarding the Company or any of its securities, to the extent
deemed advisable in light of general investment and trading policies of the
Reporting Persons, market conditions or other factors.
Item 5. Interest in Securities of the Issuer.
(a) Each of GEF, Mr. Leonard, Ms. Minton, Mr. Gregory, NV, Mr. Hannon
and Ms. Pisano may be deemed the beneficial owner of 1,000,000
shares of Common Stock. This amount is calculated based on the
number of shares of Common Stock issuable upon conversion of the
125,000 shares of Preferred Stock held for the account of GEF and
the 125,000 shares of Preferred Stock held for the account of NV.
This amount does not include any shares issuable upon exercise of
the Warrants since it cannot currently be determined whether such
Warrants are exercisable within 60 days. See Item 6 - Contracts,
Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer. The 1,000,000 shares of Common Stock
comprise approximately 18.53% of the total number of shares of
Common Stock outstanding based on the Company's representation in
the Purchase Agreement that it has 4,397,861 shares of Common
Stock outstanding and its reservation of 1,000,000 shares of
Common Stock for issuance upon conversion of the Preferred Stock.
Mr. Leonard, Ms. Minton, Mr. Gregory, Mr. Hannon and Ms. Pisano
disclaim beneficial ownership of such shares.
(b) (i) GEF, NV and the other Reporting Persons may be deemed to have
shared voting power with respect to the 1,000,000 shares deemed
beneficially held for the account of GEF and NV by virtue of the
provisions of a Shareholders Voting Agreement between GEF and NV
providing for certain voting arrangements with respect to such
shares. A copy of the Shareholders Voting Agreement is attached
hereto as Exhibit 3.
(ii) GEF, Mr. Leonard, Ms. Minton and Mr. Gregory may be deemed to
have the sole power to direct disposition of the 500,000 shares of
Common Stock issuable upon conversion of the 125,000 shares of
Preferred Stock held for the account of GEF.
(iii) NV, Mr. Hannon and Ms. Pisano may be deemed to have the sole
power to direct the disposition of the 500,000 shares of Common
Stock issuable upon conversion of the 125,000 shares of Preferred
Stock held for the account of NV.
<PAGE>
CUSIP No. 296744 10 5 13D Page 12 of 74
(iv) In addition to their interests described above in this Item
5, Mr. Hannon and Ms. Pisano have sole voting disposition power
with respect to the 6,800 shares and 6,000 shares of Common Stock,
respectively held by them.
(c) Except as described herein, none of the Reporting Persons has
effected any transaction in the Common Stock during the past 60
days.
(d) The members of GEF have the right to participate in the receipt of
dividends from, or proceeds from the sale of, the stock held by
GEF in accordance with their membership interests in GEF. The
members of NV have the right to participate in the receipt of
dividends from, or proceeds from the sale of, the stock held by NV
in accordance with their membership interests in NV.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
The Purchase Agreement provides for the purchase of the Preferred Stock
by GEF and NV and the issuance of the Warrants to GEF and NV. Under the Purchase
Agreement, GEF and NV each purchased 125,000 shares of Preferred Stock at the
initial closing and have agreed on the terms set forth in the Purchase Agreement
to purchase an additional 125,000 shares of Preferred Stock in four quarterly
installments thereafter. The Company makes customary representations and
warranties to GEF and NV and has agreed as soon as practicable to secure the
listing on the Nasdaq Stock Market of the shares of Common Stock issuable upon
conversion of the Preferred Stock and exercise of the Warrants.
In connection with the execution and delivery of the Purchase
Agreement, the Company approved Articles of Amendment of its Articles of
Incorporation, which set forth the terms of the Preferred Stock, including the
provisions concerning voting rights described above. A copy of the Articles of
Amendment is attached hereto as Exhibit 4.
Each Warrant is exercisable to purchase an aggregate of 1,000,000
shares at a purchase price of $.001 per share. Such Warrants shall only be
exercisable, however, as follows: If the market value of the Common Stock for
five consecutive trading days, with aggregate volume on the market on which the
Common Stock is traded for such five consecutive trading days of at least
100,000 shares, exceeds the amount set forth below under the heading "Share
Price", the Warrant shall be exercisable to purchase the number of shares of
Common Stock set forth below under the heading "Cumulative Shares Exercisable".
--------------------------------------------------------------------
Share Price Cumulative Shares Exercisable
--------------------------------------------------------------------
$10.00 250,000
--------------------------------------------------------------------
$12.00 375,000
--------------------------------------------------------------------
$14.00 500,000
--------------------------------------------------------------------
$16.00 625,000
--------------------------------------------------------------------
$18.00 750,000
--------------------------------------------------------------------
$20.00 1,000,000
--------------------------------------------------------------------
<PAGE>
CUSIP No. 296744 10 5 13D Page 13 of 74
The Company, GEF and NV have also entered into a Registration Rights
Agreement pursuant to which the Company has agreed to effect the registration of
Common Stock issuable upon conversion of the Preferred Stock and exercise of the
Warrants (the "Registrable Shares") on two occasions after June 30, 2001 if
requested by the holders of at least 51% of the Registrable Shares. In addition,
the Company has agreed to effect registration of such shares on Form S-3
provided such registration is not requested more than once in any 12-month
period. The Company has also agreed to allow the holders of such shares to
participate in registrations of shares which the Company may initiate from time
to time. A copy of the Registration Rights Agreement is attached hereto as
Exhibit 5.
GEF and NV have also entered into a Shareholders Voting Agreement. This
agreement provides that until September 8, 2002 each party will vote for the
designees of the other at all elections of directors of the Company and shall
consult with the other and vote as may be mutually agreed by the parties in
connection with other matters to be voted on by the Company's shareholders or
directors.
Additionally, the Reporting Persons have entered into a Joint
Acquisition Statement attached as Exhibit 6 hereto, as required by Rule 13d-1(k)
under the Securities Exchange Act of 1934, as amended.
Item 7. Materials to be Filed as Exhibits.
There is filed herewith the following Exhibits:
Exhibit 1 - Securities Purchase Exchange Agreement dated September 7,
2000 among the Company, GEF and NV.
Exhibit 2 - Form of Common Stock Warrant issued to each of GEF and NV
by the Company on September 8, 2000.
Exhibit 3 - Shareholders Voting Agreement dated September 8, 2000
between GEF and NV.
Exhibit 4 - Articles of Amendment of Articles of Incorporation of the
Company, containing terms of Preferred Stock.
Exhibit 5 - Registration Rights Agreement dated September 7, 2000 among
the Company, GEF and NV.
Exhibit 6 - A written agreement relating to the filing of joint
acquisition statements as required by Rule 13d-1(k) under
the Securities Exchange Act of 1934, as amended.
<PAGE>
CUSIP No. 296744 10 5 13D Page 14 of 74
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
DATED: September 15, 2000
GEF OPTICAL INVESTMENT COMPANY, LLC NETWORKING VENTURES, LLC
By: /s/ H. Jeffrey Leonard By: /s/ John G. Hannon
----------------------------- -----------------------------
H. Jeffrey Leonard, President John G. Hannon, Member
H. JEFFREY LEONARD MARIE S. MINTON
/s/ H. Jeffrey Leonard /s/ Marie S. Minton
----------------------------------- ----------------------------------
JAMES P. GREGORY JOHN G. HANNON
/s/ James P. Gregory /s/ John G. Hannon
----------------------------------- ----------------------------------
CAROLINE S. PISANO
/s/Caroline S. Pisano
-----------------------------------
<PAGE>
CUSIP No. 296744 10 5 13D Page 15 of 74
EXHIBIT 1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of September
7, 2000, by and among Essex Corporation, a Virginia corporation, with
headquarters located at 9150 Guilford Road, Columbia, Maryland 21046 (the
"Company"), and the investors listed on the Schedule of Buyers attached hereto
(individually, a "Buyer" and collectively, the "Buyers").
WHEREAS:
A. The Company and the Buyers 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 "1933 Act").
B. The Company has authorized the following new class of its Preferred
Stock ("Preferred Stock"): the Company's Series B Convertible Preferred Stock
(the "Series B Preferred"), which shall be convertible into shares of the
Company's Common Stock, (the "Common Stock") (as converted, the "Conversion
Shares"), in accordance with the terms of the Company's Articles of Amendment,
in the form attached hereto as Exhibit A (the "Articles of Amendment").
C. The Buyers wish to purchase, upon the terms and conditions stated in
this Agreement, an aggregate of 500,000 shares of Series B Preferred (the
"Shares") in the respective amounts set forth opposite each Buyer's name on the
Schedule of Buyers.
D. The Buyers wish to purchase, on the terms and conditions stated in
this Agreement, Warrants to purchase an aggregate of 2,000,000 shares of the
Common Stock (the shares of Common Stock issuable upon exercise of the Warrants
are referred to herein as the "Warrant Shares"), in accordance with the terms of
the form of Warrant attached hereto as Exhibit B (the "Warrants") in the
respective amounts set forth each Buyer's name on the Schedule of Buyers.
E. Contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
in the form attached hereto as Exhibit C (the "Registration Rights Agreement")
pursuant to which the Company has agreed to provide certain registration rights
under the 1933 Act and the rules and regulations promulgated thereunder, and
applicable state securities laws.
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CUSIP No. 296744 10 5 13D Page 16 of 74
NOW THEREFORE, the Company and the Buyers hereby agree as follows:
1. PURCHASE AND SALE OF SHARES; ISSUANCE OF WARRANTS.
(a) Purchase of Shares; Issuance of Warrants. At the Initial
Closing or a Subsequent Closing, as defined below, the Company shall issue and
sell to each Buyer and each Buyer severally agrees to purchase from the Company
the respective number of Shares set forth opposite such Buyer's name on the
Schedule of Buyers at such Closing at a price of $4.00 per Share. In addition,
the Company shall issue and sell to each Buyer at the Initial Closing a Warrant
to purchase the number of shares of Common Stock set forth opposite such Buyer's
name on the Schedule of Buyers.
(b) The Initial Closing. The initial closing of the
transaction contemplated hereby (the "Initial Closing") shall take place at the
offices of the Company, 9150 Guilford Road, Columbia, Maryland 21046 at 9:00
a.m. on September 15, 2000 or such later date on which the conditions specified
in Section 7 below have been satisfied or waived by the Buyers, but in no event
later than October 15, 2000. At the Initial Closing, (A) each Buyer shall pay
the purchase price to the Company for the Shares to be issued and sold to such
Buyer by check or wire transfer, and (B) the Company shall deliver to each
Buyer, (1) a stock certificate (collectively, the "Preferred Stock
Certificates") representing the number of the Shares which such Buyer is then
purchasing hereunder and (2) a Warrant for the number of shares of Common Stock
covered by Warrants indicated with respect to such Buyer on the Schedule of
Buyers, duly executed on behalf of the Company and registered in the name of
such Buyer or its designee. If at the Initial Closing any of the conditions
specified in Section 7 below have not been fulfilled, each of the Buyers shall
at its election, be relieved of all of its obligations under this Agreement
without thereby waiving any other rights it may have by reason of such failure
or such non-fulfillment.
(c) Subsequent Closings. Subsequent closings of the
transaction contemplated hereby (the "Subsequent Closings") shall be held as
shown on the Schedule of Buyers. At each Subsequent Closing, (A) each Buyer
shall pay the purchase price to the Company for the Shares to be issued and sold
at such Subsequent Closing to such Buyer by check or wire transfer, and (B) the
Company shall deliver to each Buyer, a Preferred Stock Certificate representing
the number of the Shares which such Buyer is then purchasing hereunder. If, at a
Subsequent Closing, a Buyer fails to purchase the full number of Shares to be
purchased by it at such Subsequent Closing, and if such Buyer does not
thereafter purchase such Shares within 10 days after its receipt of written
notice of such failure, such Buyer shall no longer have the right to purchase
Shares at Subsequent Closings.
(d) Acceleration. If elected by the Company's Board of
Directors, including all of the directors appointed by the Buyers, the Company
may accelerate the obligation of the Buyers to purchase the Shares they are
required to purchase at Subsequent Closings. In such event, the Company shall
give at least 10 days written notice to the Buyers of the date, time and place
of the accelerated closing, including the number of Shares to be purchased and
the aggregate purchase price therefor. At the accelerated closing, (A) each
Buyer shall pay the purchase price to the Company for the Shares to be issued
and sold at such closing to such Buyer by check or wire transfer, and (B) the
Company shall deliver to each Buyer, a Preferred Stock Certificate representing
the number of the Shares which such Buyer is then purchasing hereunder.
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CUSIP No. 296744 10 5 13D Page 17 of 74
2. BUYERS' REPRESENTATIONS AND WARRANTIES.
Each Buyer represents and warrants with respect only to itself
that:
(a) Investment Purpose. Such Buyer (i) is acquiring the Shares
and Warrants being purchased by it, (ii) upon conversion of such Shares, will
acquire the Conversion Shares then issuable and (iii) upon exercise of such
Warrants, will acquire the Warrant Shares then issuable (the Shares, the
Conversion Shares and the Warrant Shares collectively are referred to herein as
the "Securities"), 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 1933 Act;
provided, however, that by making the representations herein, such Buyer does
not agree to hold any of the Securities for any minimum or other specific term
and reserves the right to dispose of the Securities 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 1933 Act.
(b) Accredited Investor Status. Such Buyer is an "accredited
investor" as that term is defined in Rule 501(a)(3) of Regulation D under the
1933 Act.
(c) Reliance on Exemptions. Such Buyer understands that the
Securities 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 Buyer's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Buyer set forth herein in
order to determine the availability of such exemptions and the eligibility of
such Buyer to acquire the Securities.
(d) Information. Such Buyer 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
Securities which have been requested by such Buyer. Such Buyer and its advisors,
if any, have been afforded the opportunity to ask questions of the Company.
Neither such inquiries nor any other due diligence investigations conducted by
such Buyer or its advisors, if any, or its representatives shall modify, amend
or affect such Buyer's right to rely on the Company's representations and
warranties contained in Sections 3 and 9(l) below.
(e) Residency. Such Buyer is purchasing the Securities from
its office specified in its address on the Schedule of Buyers.
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CUSIP No. 296744 10 5 13D Page 18 of 74
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers
that:
(a) Organization and Qualification. The Company and its
"Subsidiaries" (which for purposes of this Agreement means any entity in which
the Company, directly or indirectly, owns capital stock or holds an equity or
similar interest which ownership entitles the Company to elect a majority of the
board of directors or similar governing body of such entity) are corporations
duly organized and validly existing in good standing under the laws of the
jurisdiction in which they are incorporated, and have the requisite corporate
power and authorization to own their properties and to carry on their business
as now being conducted. Each of the Company and its Subsidiaries is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which its ownership of property or the nature of the
business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect. As used in this Agreement, "Material Adverse Effect"
means any material adverse effect on the business, properties, assets,
operations, results of operations, or financial condition of the Company and its
Subsidiaries, if any, taken as a whole, or on the transactions contemplated
hereby or by the agreements and instruments to be entered into in connection
herewith, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents (as defined below) or the Articles
of Amendment. A complete list of entities in which the Company, directly or
indirectly, owns capital stock or holds an equity or similar interest is set
forth on Schedule 3(a).
(b) Authorization; Enforcement; Validity. The Company has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement, the Warrants, the Registration Rights
Agreement, and each of the other agreements entered into by the parties hereto
in connection with the transactions contemplated by this Agreement
(collectively, the "Transaction Documents"), and to issue the Securities in
accordance with the terms hereof and thereof. The execution and delivery of the
Transaction Documents by the Company and the execution and filing of the
Articles of Amendment by the Company and the consummation by it of the
transactions contemplated hereby and thereby, have been duly authorized by the
Company's Board of Directors and no further consent or authorization is required
by the Company, its Board of Directors or its stockholders. The Transaction
Documents have been duly executed and delivered by the Company. The Transaction
Documents constitute the valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency or similar laws relating to, or affecting generally, the
enforcement of creditors' rights and remedies. The Articles of Amendment, which
shall have been filed prior to the Initial Closing with the Virginia State
Corporation Commission, shall thereafter be in full force and effect,
enforceable against the Company in accordance with their terms and shall not
have been amended.
(c) Capitalization. The authorized capital stock of the
Company consists of (i) 25,000,000 shares of Common Stock, of which as of the
date hereof 4,397,861 shares are issued and outstanding, 1,159,850 shares are
reserved for issuance pursuant to the Company's
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CUSIP No. 296744 10 5 13D Page 19 of 74
stock option and purchase plans, and 439,868 shares are issuable and reserved
for issuance pursuant to securities (other than the Preferred Stock, and stock
option and purchase plans) exercisable or exchangeable for, or convertible into,
shares of Common Stock, and (ii) 1,000,000 shares of Preferred Stock, of which
as of the date hereof, 2,500 shares are designated as Class A Preferred Stock,
all of which is held in the Company's treasury and 500,000 shares are designated
as Series B Preferred, none of which are issued or outstanding. All of such
outstanding shares have been, or upon issuance will be, validly issued and are
fully paid and nonassessable. Except as disclosed in Schedule 3(c), (A) no
shares of the Company's capital stock are subject to preemptive rights or any
other similar rights (arising under Virginia law, the Company's Articles of
Incorporation or By-laws or any agreement or instrument to which the Company is
a party) or any liens or encumbrances granted or created by the Company; (B)
there are no outstanding debt securities issued by the Company; (C) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
Subsidiaries, or contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its Subsidiaries or
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its Subsidiaries; (D) there are
no agreements or arrangements under which the Company or any of its Subsidiaries
is obligated to register the sale of any of their securities under the 1933 Act
(except the Registration Rights Agreement); (E) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries; (F) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Securities as described in this Agreement; and (G) the Company does not have
any stock appreciation rights or "phantom stock" plans or agreements or any
similar plan or agreement. The Company has furnished to each Buyer true and
correct copies of the Company's Articles of Incorporation, as amended and as in
effect on the date hereof (the "Articles of Incorporation"), the Company's
By-laws, as amended and as in effect on the date hereof (the "By-laws"), and the
terms of all securities convertible into or exercisable or exchangeable for
Common Stock and the material rights of the holders thereof in respect thereto.
(d) Issuance of Securities. The Shares are duly authorized
and, upon issuance at the Closing at which they are issued, shall be (i) validly
issued, fully paid and non-assessable, (ii) free from all taxes, liens and
charges with respect to the issuance thereof and (iii) entitled to the rights
and preferences set forth in the Articles of Amendment. As of the Initial
Closing, at least 2,000,000 shares of Common Stock (subject to adjustment as
provided in the Articles of Amendment) will have been duly authorized and
reserved for issuance upon conversion of the Shares and 2,000,000 shares of
Common Stock (subject to adjustment as provided in the Warrants) will have been
duly authorized for issuance upon exercise of the Warrants. Upon conversion in
accordance with the Articles of Amendment or issuance in accordance with the
Warrants, the Conversion Shares and the Warrant Shares, as the case may be, will
be validly issued, fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof, with the holders being entitled
to all rights accorded to a holder of Common Stock. The issuance by the Company
of the Securities is exempt from registration under the 1933 Act.
<PAGE>
CUSIP No. 296744 10 5 13D Page 20 of 74
(e) No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company, the performance by the Company of its
obligations under the Articles of Amendment and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without
limitation, the reservation for issuance and issuance of the Conversion Shares
and Warrant Shares) will not (i) result in a violation of the Articles of
Incorporation or the By-laws; (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, indenture or instrument to which the
Company or any of its Subsidiaries is a party; (iii) result in a violation of
any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected. Neither the Company nor its Subsidiaries is
in violation of any term of its Articles of Incorporation or its By-laws or
their organizational charter or by-laws, respectively. Except as disclosed in
Schedule 3(e), neither the Company nor any of its Subsidiaries is in violation
of any term of or in default under any contract, agreement, mortgage,
indebtedness, indenture, instrument, judgment, decree or order or any statute,
rule or regulation applicable to the Company or its Subsidiaries, except where
such violations and defaults would not result, either individually or in the
aggregate, in a Material Adverse Effect. The business of the Company and its
Subsidiaries is not being conducted, and shall not be conducted, in violation of
any law, ordinance or regulation of any governmental entity, except where such
violations would not result, either individually or in the aggregate, in a
Material Adverse Effect. Except as specifically contemplated by this Agreement,
as required under the 1933 Act, or as required by Blue Sky filings, the Company
is not required to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency or any regulatory
or self-regulatory agency in order for it to execute, deliver or perform any of
its obligations under or contemplated by the Transaction Documents or to perform
its obligations under the Articles of Amendment in accordance with the terms
hereof or thereof. Except as disclosed in Schedule 3(e), all consents of
security agencies and all other consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof. The
Company and its Subsidiaries are unaware of any facts or circumstances which
might give rise to any of the foregoing.
(f) SEC Documents; Financial Statements. Since December 31,
1997, the Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act")
(all of the foregoing filed prior to the date hereof and all exhibits included
therein and financial statements and schedules thereto and documents
incorporated by reference therein being hereinafter referred to as the "SEC
Documents"). A complete list of the Company's SEC Documents is set forth on
Schedule 3(f). Except as disclosed on Schedule 3(f), as of the date hereof, the
SEC Documents, as they may have been subsequently amended by filings made by the
Company with the SEC prior to the date hereof, complied in all material respects
with the requirements of the 1934 Act and the rules and
<PAGE>
CUSIP No. 296744 10 5 13D Page 21 of 74
regulations of the SEC promulgated thereunder applicable to the SEC Documents.
None of the SEC Documents, as of the date hereof and as they may have been
subsequently amended by filings made by the Company with the SEC prior to the
date hereof, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Except as disclosed on Schedule 3(f), as of their
respective dates, the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Except as disclosed on Schedule 3(f), such financial statements
have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company to
the Buyers which is not included in the SEC Documents, including, without
limitation, information referred to in Section 2(d), contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstance under
which they are or were made, not misleading. The Company is not required to file
and will not be required to file any agreement, note, lease, mortgage, deed or
other instrument entered into prior to the date hereof and to which the Company
is a party or by which the Company is bound which has not been previously filed
as an exhibit to its reports filed with the SEC under the 1934 Act.
(g) Absence of Certain Changes. Except as disclosed in
Schedule 3(g) or as disclosed in the Company's Annual Report on Form 10-KSB for
the year ended December 26, 1999 or Quarterly Report on Form 10-QSB for the
period ending June 25, 2000, since December 26, 1999, there has been no change
or development that has had or could reasonably be expected to have a Material
Adverse Effect. The Company has not taken any steps, and does not currently
expect to take any steps, to seek protection pursuant to any bankruptcy law nor
does the Company or any of its Subsidiaries have any knowledge or reason to
believe that its creditors intend to initiate involuntary bankruptcy proceedings
or any actual knowledge of any fact which would reasonably lead a creditor to do
so. Except as disclosed in Schedule 3(g) or as disclosed in the Company's
Quarterly Report on Form 10-QSB for the period ending June 30, 2000, since
December 31, 1999, the Company has not declared or paid any dividends, sold any
assets, individually or in the aggregate, in excess of $100,000 outside of the
ordinary course of business or had capital expenditures, individually or in the
aggregate, in excess of $250,000.
(h) Absence of Litigation. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to the
knowledge of the Company or any of its Subsidiaries, threatened against or
affecting the Company, the Common Stock or any of the Company's Subsidiaries or
any of the Company's or the Company's Subsidiaries' officers or directors in
their capacities as such, except as expressly set forth in Schedule 3(h) or,
with respect to the Company and its Subsidiaries, to the extent that such action
or threatened action does not set
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CUSIP No. 296744 10 5 13D Page 22 of 74
forth potential liability, claims or charges, individually or in the aggregate,
in excess of $100,000. Except as set forth in Schedule 3(h), to the knowledge of
the Company none of the directors or officers of the Company have been involved
in securities-related litigation during the past five years.
(i) Acknowledgment Regarding Buyers' Purchase of Shares. The
Company acknowledges and agrees that each of the Buyers is acting solely in the
capacity of an arm's length purchaser with respect to the Transaction Documents
and the Articles of Amendment and the transactions contemplated hereby and
thereby. The Company further acknowledges that each Buyer is not acting as a
financial advisor or fiduciary of the Company (or in any similar capacity) with
respect to the Transaction Documents and the Articles of Amendment and the
transactions contemplated hereby and thereby and any advice given by any of the
Buyers or any of their respective representatives or agents in connection with
the Transaction Documents and the Articles of Amendment and the transactions
contemplated hereby and thereby is merely incidental to such Buyer's purchase of
the Securities. The Company further represents to each Buyer that the Company's
decision to enter into the Transaction Documents has been based solely on the
independent evaluation by the Company and its representatives.
(j) No Undisclosed Events, Liabilities, Developments or
Circumstances. Except for the issuance of the Series B Preferred and Warrants
contemplated by this Agreement, no event, liability, development or circumstance
has occurred or exists, or is contemplated to occur, with respect to the Company
or its Subsidiaries or their respective business, properties, operations or
financial condition, that would be required to be disclosed by the Company under
applicable securities laws on a registration statement on Form S-1 filed with
the SEC relating to an issuance and sale by the Company of its Common Stock and
which has not been publicly disclosed.
(k) No General Solicitation. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the 1933 Act) in connection with the offer or sale of the
Securities.
(l) No Integrated Offering. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would require registration of the
issuance by the Company of any of the Securities under the 1933 Act or cause
this offering of the Securities to be integrated with prior offerings by the
Company for purposes of the 1933 Act or, except as set forth on Schedule 3(l),
any applicable stockholder approval provisions, nor will the Company or any of
its Subsidiaries take any action or steps that would require registration of the
issuance by the Company of any of the Securities under the 1933 Act or, except
as set forth on Schedule 3(l), cause the offering of the Securities to be
integrated with other offerings.
(m) Employee Relations. Neither the Company nor any of its
Subsidiaries is involved in any union labor dispute nor, to the knowledge of the
Company or any of its Subsidiaries, is any such dispute threatened. None of the
Company's or its Subsidiaries'
<PAGE>
CUSIP No. 296744 10 5 13D Page 23 of 74
employees is a member of a union which relates to such employee's relationship
with the Company, neither the Company nor any of its Subsidiaries is a party to
a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relations with their employees are good. No executive officer (as
defined in Rule 501(f) of the 1933 Act) has notified the Company that such
officer intends to leave the Company or otherwise terminate such officer's
employment with the Company. No executive officer, to the best knowledge of the
Company and its Subsidiaries, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality, disclosure or
proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the continued employment
of each such executive officer does not subject the Company or any of its
Subsidiaries to any liability with respect to any of the foregoing matters.
(n) Intellectual Property Rights. To the best of the Company's
knowledge, the Company and its Subsidiaries own or possess adequate rights or
licenses to use all trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets and other
intellectual property rights necessary to conduct their respective businesses as
now conducted, except where the failure to own or possess such rights would not
result, either individually or in the aggregate, in a Material Adverse Effect.
Except as set forth on Schedule 3(n), to the best of the Company's knowledge,
none of the Company's trademarks, trade names, service marks, service mark
registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets or other
intellectual property rights have expired or terminated, or are expected to
expire or terminate within two years from the date of this Agreement, except
where such expiration or termination would not result, either individually or in
the aggregate, in a Material Adverse Effect. The Company and its Subsidiaries do
not have any knowledge of any infringement by the Company or its Subsidiaries of
trademarks, trade names, service marks, service mark registrations, service
names, patents, patent rights, copyrights, inventions, licenses, trade secrets
or other intellectual property rights of others, or of any development of
identical trade secrets or technical information by others and, except as set
forth on Schedule 3(n), there is no claim, action or proceeding being made or
brought against, or to the Company's knowledge, being threatened against, the
Company or its Subsidiaries regarding its trademarks, trade names, service
marks, service mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, trade secrets, or infringement of other
intellectual property rights. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value
of all of their intellectual properties.
(o) Title. The Company and its Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business
of the Company and its Subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in Schedule 3(o) or such
as do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and any of
its Subsidiaries. Any real property and facilities held under lease by the
Company and any of its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and facilities by the
Company and its Subsidiaries.
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CUSIP No. 296744 10 5 13D Page 24 of 74
(p) Insurance. The Company and each of its Subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as management of the Company believes to be
prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been
refused any insurance coverage sought or applied for and neither the Company nor
any such Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect, taken as a
whole.
(q) Regulatory Permits. Except for Permits (as defined below)
the absence of which would not result, either individually or in the aggregate,
in a Material Adverse Effect, the Company and its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses (the "Permits"), and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such Permit.
(r) Internal Accounting Controls. The Company and each of its
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(s) No Materially Adverse Contracts, Etc. Neither the Company
nor any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Company's officers has or is expected in the future to have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a
party to any contract or agreement which in the judgment of the Company's
officers has or is expected to have a Material Adverse Effect.
(t) Tax Status. The Company and each of its Subsidiaries (i)
has made or filed all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company and each of its Subsidiaries has
set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes), (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and for which the Company has made appropriate reserves for on its
books, and (iii) has set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations (referred to in clause (i) above) apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of no basis
for any such claim.
<PAGE>
CUSIP No. 296744 10 5 13D Page 25 of 74
(u) Transactions With Affiliates. Except as set forth on
Schedule 3(u), and other than the grant of stock options disclosed on Schedule
3(c), none of the officers, directors or employees of the Company is presently a
party to any transaction with the Company or any of its Subsidiaries (other than
for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director or employee or, to the
knowledge of the Company, any corporation, partnership, trust or other entity in
which any such officer, director, or employee has a substantial interest or is
an officer, director, trustee or partner.
(v) Application of Takeover Protections. The Company and its
board of directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other similar
anti-takeover provision under the Articles of Amendment or the laws of the state
of its incorporation which is or could become applicable to the Buyers as a
result of the transactions contemplated by this Agreement, including, without
limitation, the Company's issuance of the Securities and the Buyers' ownership
of the Securities.
(w) Rights Agreement. The Company has not adopted a
shareholder rights plan or similar arrangement relating to accumulations of
beneficial ownership of Common Stock or a change in control of the Company.
(x) No Other Agreements. The Company has not, directly or
indirectly, made any agreements with any Buyers relating to the terms or
conditions of the transactions contemplated by the Transaction Documents except
as set forth in the Transaction Documents.
4. COVENANTS.
(a) Best Efforts. Each party shall use its best efforts to
timely satisfy each of the conditions to be satisfied by it as provided in
Sections 6 and 7 of this Agreement.
(b) Form D and Blue Sky. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Buyer 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 Securities for, sale to the Buyers
pursuant to this Agreement under applicable securities or "Blue Sky" laws of the
states of the United States, and shall provide evidence of any such action so
taken to the Buyers. The Company shall make all other filings and reports
relating to the offer and sale of the Securities required under applicable
securities or "Blue Sky" laws of the states of the United States.
(c) Reporting Status. Until the date which is one year after
the date as of which the Stockholders (as that term is defined in the
Registration Rights Agreement) may sell all of the Conversion Shares and Warrant
Shares without restriction pursuant to Rule 144(k) promulgated under the 1933
Act (or successor thereto) (the "Reporting Period"), the Company
<PAGE>
CUSIP No. 296744 10 5 13D Page 26 of 74
shall file all reports required to be filed with the SEC pursuant to the 1934
Act, and the Company shall not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules and
regulations thereunder would otherwise permit such termination.
(d) Use of Proceeds. The Company will use the proceeds from
the sale of the Shares substantially for the development of the optical
channelizer and optical CDMA.
(e) Financial Information. The Company agrees to send the
following to each Stockholder (as that term is defined in the Registration
Rights Agreement) during the Reporting Period: (i) within two (2) days after the
filing thereof with the SEC, a copy of its Annual Reports on Form 10-KSB (or
10-K), its Quarterly Reports on Form 10-QSB (or 10-Q), any Current Reports on
Form 8-K and any registration statements (other than on Form S-8) or amendments
filed pursuant to the 1933 Act, provided that if any such report is not filed
with the SEC through EDGAR then the Company shall deliver a copy of such report
to each Stockholder by facsimile on the same day it is filed with the SEC; (ii)
on the same day as the release thereof, facsimile copies of all press releases
issued by the Company or any of its Subsidiaries; and (iii) copies of any
notices and other information made available or given to the stockholders of the
Company generally, contemporaneously with the making available or giving thereof
to the stockholders.
(f) Reservation of Shares. The Company shall take all action
necessary to at all times have authorized, and reserved for the purpose of
issuance, no less than the number of shares of Common Stock needed to provide
for the issuance of the shares of Common Stock upon conversion of all
outstanding Shares and exercise of all Warrants.
(g) Listing. The Company shall as soon as practicable secure
the listing of all of the Registrable Shares (as defined in the Registration
Rights Agreement) upon the Nasdaq Stock Market and shall maintain, so long as
any other shares of Common Stock shall be so listed, such listing of all
Registrable Shares from time to time issuable under the terms of the Transaction
Documents and the Articles of Amendment.
(h) Filing of Form 8-K. Promptly following the Initial
Closing, the Company shall file a Current Report on Form 8-K with the SEC
describing the terms of the transactions contemplated by the Transaction
Documents and including as exhibits to such Current Report on Form 8-K this
Agreement, the Articles of Amendment and the Registration Rights Agreement, in
the form required by the 1934 Act.
(i) Meeting of Shareholders. In the event that designees of
the Buyers do not at any time comprise a majority of the directors of the
Corporation, the Company shall, at the request of the Buyers, convene a meeting
of shareholders for the election of directors as soon as possible; provided,
however, that this Section 4(i) shall be applicable only so long as Buyers (i)
hold Series B Preferred and (b) are not in default beyond the applicable grace
and cure provisions in their obligations to make payments on Subsequent Closings
under Section 1(c) of this Agreement.
<PAGE>
CUSIP No. 296744 10 5 13D Page 27 of 74
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall issue irrevocable instructions to its
transfer agent in the form attached hereto as Exhibit D (the "Irrevocable
Transfer Agent Instructions"), and any subsequent transfer agent, to issue
certificates, registered in the name of each Buyer or its respective nominee(s),
for the Conversion Shares and Warrant Shares in such amounts as specified from
time to time by each Buyer to the Company upon conversion of the Shares or
exercise of the Warrants. The Company warrants that no instruction other than
the Irrevocable Transfer Agent Instructions referred to in this Section 5 will
be given by the Company to its transfer agent and that the Securities shall
otherwise be freely transferable on the books and records of the Company as and
to the extent provided in this Agreement and the Registration Rights Agreement.
If a Buyer provides the Company with an opinion of counsel, in a generally
acceptable form (it being stipulated that an opinion of Hale and Dorr LLP shall
be acceptable), to the effect that a public sale, assignment or transfer of
Securities may be made without registration under the 1933 Act or the Buyer
provides the Company with reasonable assurances (including, if requested by the
Company, delivering such reasonable assurances to the Company's counsel in
connection with such counsel rendering an opinion on the validity of a sale by
such Buyer pursuant to Rule 144) that the Securities can be sold pursuant to
Rule 144 without any restriction as to the number of securities acquired as of a
particular date that can then be immediately sold, the Company shall permit the
transfer, and, in the case of the Conversion Shares and the Warrant Shares,
promptly instruct its transfer agent to issue one or more certificates in such
name and in such denominations as specified by such Buyer and without any
restrictive legend. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Buyers by vitiating the
intent and purpose of the transaction contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations
under this Section 5 will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Section 5, that the
Buyers shall be entitled, in addition to all other available remedies, to an
order and/or injunction restraining any breach and requiring immediate issuance
and transfer, without the necessity of showing economic loss and without any
bond or other security being required.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligation of the
Company to issue and sell the Shares to each Buyer is subject to the
satisfaction, at or before the date of the Initial Closing, or a Subsequent
Closing, as applicable of each 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 each Buyer with prior written
notice thereof:
(a) As of the Initial Closing, such Buyer shall have executed each
of the Transaction Documents to which it is a party and delivered the
same to the Company.
(b) As of the Initial Closing, the Articles of Amendment shall have
been filed with the Virginia State Corporation Commission;
(c) The representations and warranties of such Buyer shall be true
and correct in all material respects as of the date when made and as of
the Initial Closing and such Subsequent Closings as though made at that
time, and such Buyer shall have performed, satisfied and complied with
the covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by such Buyer at
or prior to the Initial Closing.
<PAGE>
CUSIP No. 296744 10 5 13D Page 28 of 74
7. CONDITIONS TO EACH BUYER'S OBLIGATIONS. The obligation of each Buyer
hereunder to purchase the Shares from the Company is subject to the
satisfaction, at or before the date of the Initial Closing, of each of the
following conditions, provided that these conditions are for each Buyer's sole
benefit and may be waived by such Buyer at any time in its sole discretion by
providing the Company with prior written notice thereof:
(a) The Company shall have executed each of the Transaction
Documents and delivered the same to such Buyer.
(b) The Articles of Amendment shall have been filed with the
Virginia State Corporation Commission, and a copy thereof certified by
the Virginia State Corporation Commission shall have been delivered to
such Buyer.
(c) The representations and warranties of the Company shall be true
and correct (except that representations and warranties which are not
qualified by the terms "material" or "Material Adverse Effect" need
only be true and correct in all material respects) as of the date when
made and as of the date of the Initial Closing as though made at that
time (except for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied and
complied with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by
the Company at or prior to the date of Initial Closing. Such Buyer
shall have received a certificate, executed by the Chief Executive
Officer of the Company, dated as of the date of Initial Closing, to the
foregoing effect and as to such other matters as may be reasonably
requested by such Buyer.
(d) Such Buyer shall have received the opinion of Whiteford, Taylor
& Preston L.L.P., dated as of the date of Initial Closing, in a form
reasonably acceptable to such Buyer to the effect that:
(i) the Company has been duly incorporated and organized and is
validly existing and in good standing under the laws of the
Commonwealth of Virginia. The Company has the corporate power and
authority to carry on its business as now conducted and to enter into
and perform its obligations under the Transaction Documents. The
Company is duly qualified to do business and is in good standing as a
foreign corporation in the State of Maryland.
(ii) the issuance, sale and delivery of the Shares and the
Warrants by the Company and the issuance and delivery of the Conversion
Shares and the Warrant Shares have been duly authorized and reserved
for issuance, as the case may be, by all necessary corporate action on
the part of the Company. The Shares and the Warrants, when so issued,
sold and delivered against payment therefore as contemplated by this
Agreement, and the Conversion Shares and the Warrant Shares, when
issued upon conversion of the Shares or exercise of the Warrants, will
be validly issued, fully paid and non-assessable.
<PAGE>
CUSIP No. 296744 10 5 13D Page 29 of 74
(iii) the execution, delivery and performance by the Company of
each of the Transaction Documents have been duly authorized by all
requisite corporate action, and the Company has duly executed and
delivered the Transaction Documents. Each of the Transaction Documents
are valid and binding obligations of the Company and are enforceable
against the Company in accordance with their terms, except as the same
may be limited by applicable insolvency laws or equitable
considerations, and except that no opinion need be expressed as to the
enforceability of provisions requiring indemnification for violations
of federal securities laws. The Company's execution and delivery of the
Transaction Documents and the Company's performance of its obligations
thereunder do not conflict with or result in a violation of the
Company's Articles of Incorporation or Bylaws, each as amended to date
and presently in effect, or any indenture, lease, agreement or other
instrument known to such counsel to which the Company is a party or by
which it or its property is bound, or any decree, judgment or order
known to such counsel that is binding upon the Company.
(iv) except as obtained and in effect at the Initial Closing,
no approval, consent or authorization of any governmental authority
(other than filings required to be made after such Initial Closing
under applicable federal and state securities laws) is required of the
Company in connection with the execution of delivery of the Transaction
Documents, or the offer, issuance, sale and delivery of the Shares or
the other transactions to be consummated pursuant to this Agreement.
(v) To the best of such counsel's knowledge, except as set
forth in Schedule 3(h) to this Agreement, there is no action, suit or
proceeding, or governmental inquiry or investigation, pending or
threatened against the Company.
(e) The Company shall have executed and delivered to such Buyer the
Preferred Stock Certificates (in such denominations as such Buyer shall
request) for the Shares being purchased by such Buyer at the Initial
Closing and the Warrants being purchased by such Buyer at the Initial
Closing.
(f) The Board of Directors of the Company shall have adopted
resolutions consistent with Section 3(b) above and in a form reasonably
acceptable to such Buyer (the "Resolutions").
(g) As of the date of Initial Closing, the Company shall have
reserved out of its authorized and unissued Common Stock, solely for
the purpose of effecting the conversion of the Shares and the exercise
of the Warrants, at least 4,000,000 shares of Common Stock.
(h) The Irrevocable Transfer Agent Instructions, in the form of
Exhibit D attached hereto, shall have been delivered to and
acknowledged in writing by the Company's transfer agent.
<PAGE>
CUSIP No. 296744 10 5 13D Page 30 of 74
(i) The Company shall have delivered to such Buyer a certificate
evidencing the incorporation and good standing of the Company and each
Subsidiary in such entity's state of incorporation or organization
issued by the Secretary of State of such state of incorporation or
organization as of a date within ten days prior to the date of Initial
Closing and the Company shall have delivered to such Buyer a
certificate evidencing the Company's qualification to do business in
Maryland as of a date within ten days prior to the date of Initial
Closing.
(j) The Company shall have delivered to such Buyer a certified copy
of the Articles of Incorporation as certified by the Virginia State
Corporation Commission as of a date within ten days prior to the date
of Initial Closing.
(k) The Company shall have delivered to such Buyer a secretary's
certificate, dated as of the date of Initial Closing, certifying as to
(A) the Resolutions, (B) the Articles of Incorporation and (C) the
By-laws, each as in effect at the Initial Closing.
(l) The Company shall have obtained all consents required in
connection with the transaction contemplated by the Transaction
Documents, including without limitation all requisite consents of
security agencies, and shall have delivered copies of such consents to
the Buyers.
(m) The Company shall have made all filings under all applicable
federal and state securities laws necessary to consummate the issuance
of the Securities pursuant to this Agreement in compliance with such
laws.
(n) The Company shall have delivered to such Buyer a letter from
the Company's transfer agent certifying the number of shares of Common
Stock outstanding as of a date within five days prior to the date of
Initial Closing.
(o) The members of the Board of Directors of the Company shall be
Leonard Moodispaw, Terry Turpin, Robert Hicks, Frank Manning, Ray
Keeler, Harold Hanson, John Hannon, Caroline Pisano and H. Jeffrey
Leonard.
(p) All of the issued and outstanding capital stock of Veriterre
Corporation shall have been assigned to the Company on terms acceptable
to the Buyers.
(q) The Company shall have entered into Employment Agreements in
the form of Exhibit E attached here to with those persons specified by
the Buyers.
(r) The Company shall have obtained the written consent to the
transactions contemplated hereby of those persons specified by the
Buyers in a form satisfactory to the Buyer.
(s) The Company shall have renegotiated the terms and conditions of
its agreement with Rumsey Associates Limited Partnership so that none
of the amounts paid to the Company hereunder shall be paid to or for
the benefit of Rumsey Associates Limited Partnership and such
negotiated terms and conditions are otherwise acceptable to Buyers.
<PAGE>
CUSIP No. 296744 10 5 13D Page 31 of 74
(t) The Company shall have delivered to the Buyers such other
documents relating to the transactions contemplated by the Transaction
Documents as the Buyers or their counsel may reasonably request.
8. INDEMNIFICATION. In consideration of each Buyer's execution and
delivery of the Transaction Documents and acquiring the Securities thereunder
and in addition to all of the Company's other obligations under the Transaction
Documents and the Articles of Amendment, the Company shall defend, protect,
indemnify and hold harmless each Buyer and each other holder of the Securities
and all of their stockholders, officers, directors, employees and direct or
indirect investors and any of the foregoing persons' agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the
"Indemnitees") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby,
(c) any cause of action, suit or claim brought or made against such Indemnitee
(other than a cause of action, suit or claim which is (x) brought or made by the
Company and (y) is not a shareholder derivative suit) and arising out of or
resulting from (i) the execution, delivery, performance or enforcement of the
Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, (ii) any transaction financed or to be financed
in whole or in part, directly or indirectly, with the proceeds of the issuance
of the Securities or (iii) the status of such Buyer or holder of the Securities
as an investor in the Company. To the extent that the foregoing undertaking by
the Company may be unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. Except as otherwise set
forth herein, the mechanics and procedures with respect to the rights and
obligations under this Section 8 shall be the same as those set forth in Section
2 of the Registration Rights Agreement, including, without limitation, those
procedures with respect to the settlement of claims and the Company's rights to
assume the defense of claims.
9. 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
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.
<PAGE>
CUSIP No. 296744 10 5 13D Page 32 of 74
(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 each Buyer, 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 any Buyer 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 Buyers.
(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
9150 Guilford Road
Columbia, Maryland 21046
Telephone: 301-939-7000
Facsimile: 301-953-7880
Attention: Leonard E. Moodispaw, President
<PAGE>
CUSIP No. 296744 10 5 13D Page 33 of 74
With a copy to:
D. Scott Freed, Esq.
Whiteford, Taylor & Preston, L.L.P.
7 Saint Paul Street
Baltimore, Maryland 21202-1626
Telephone: 410-347-8700
Facsimile: 410-752-7092
If to the Transfer Agent:
Registrar and Transfer Company
10 Commerce Drive
Cranford, New Jersey 07016-3572
If to a Buyer, to it at the address and facsimile number set
forth on the Schedule of Buyers, with copies to such Buyer's representatives as
set forth on the Schedule of Buyers, or at 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 Buyers. A Buyer may
assign some or all of its rights hereunder without the consent of the Company,
provided, however, that the transferee has agreed in writing to be bound by the
applicable provisions of this Agreement and the Company has consented to such
assignment and assumption, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, a Buyer may transfer Shares only to a partner,
member, stockholder or affiliate of such Buyer, but a Buyer may transfer freely
Conversion Shares or any other securities of the Company a Buyer may hold.
(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
Company and the Buyers contained in Sections 2 and 3, the agreements and
covenants set forth in Sections 4, 5 and 9, and the indemnification provisions
set forth in Section 8, shall survive the Initial Closing. Each Buyer shall be
responsible only for its own representations, warranties, agreements and
covenants hereunder.
<PAGE>
CUSIP No. 296744 10 5 13D Page 34 of 74
(j) Publicity. The Company and each Buyer 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.
(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, or the Warrants. The Company shall pay, and hold each Buyer 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.
(m) Remedies. Each Buyer and each holder of the Securities
shall have all rights and remedies set forth in the Transaction Documents and
the Articles of Amendment and all rights and remedies which such holders have
been granted at any time under any other agreement or contract and all of the
rights which such holders have under any law. Any person having any rights under
any provision of this Agreement shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
(n) Voting of Common Stock by Buyers. Each Buyer agrees that,
so long as it holds Series B Preferred which it has the right to vote as
provided in Section (c)(B)(4)(a) of the Articles of Amendment, such Buyer shall
vote any shares of Common Stock held by it or any of its affiliates on any
matter voted on by shareholders of the Company in the same proportions as all
other shares of the Common Stock of the Company, excluding any shares of Common
Stock held by a Buyer, are voted on such matter. It shall be a condition of any
transfer by a Buyer of shares of Common Stock acquired by a Buyer pursuant to
conversion of Series B Preferred or exercise of a Warrant (but not shares of
Common Stock acquired by the Buyer in the open market), that the transferee
agree to be bound by the provisions of this subsection (n) to the same extent as
the Buyer.
IN WITNESS WHEREOF, the Buyers 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/ Leonard Moodispaw
----------------------------------------
Name: Leonard Moodispaw
Title: President
<PAGE>
CUSIP No. 296744 10 5 13D Page 35 of 74
BUYERS:
GEF OPTICAL INVESTMENT
COMPANY, LLC
By: /s/ H. Jeffrey Leonard
---------------------------------------
Name: H. Jeffrey Leonard
Title: President
NETWORKING VENTURES, LLC
By: /s/ John G. Hannon
---------------------------------------
Name: John G. Hannon
Title: Partner
<PAGE>
CUSIP No. 296744 10 5 13D Page 36 of 74
SCHEDULE OF BUYERS
<TABLE>
<CAPTION>
Investor Address Number of Shares Number of Shares Shares Covered by
Investor Name and Facsimile Number (Initial Closing) Subsequent Closings Warrants
<S> <C> <C> <C> <C>
GEF Optical Investment 1225 Eye Street, 125,000 December 15, 2000: 31,250 1,000,000
Company, LLC N.W, Suite 900 March 15, 2001: 31,250
Washington, DC 20005 June 15, 2001: 31,250
September 15, 2001: 31,250
Networking Ventures, 8970 Route 108 125,000 December 15, 2000: 31,250 1,000,000
L.L.C. Columbia, MD 21045 March 15, 2001: 31,250
June 15, 2001: 31,250
September 15, 2001: 31,250
</TABLE>
<PAGE>
CUSIP No. 296744 10 5 13D Page 37 of 74
SCHEDULES
Schedule 3(a) - Subsidiaries
Schedule 3(c) - Capitalization
Schedule 3(e) - Conflicts
Schedule 3(f) - SEC Documents
Schedule 3(g) - Material Changes
Schedule 3(h) - Litigation
Schedule 3(l) - Integration
Schedule 3(n) - Intellectual Property
Schedule 3(o) - Liens
Schedule 3(u) - Transactions with Affiliates
EXHIBITS
Exhibit A - Form of Articles of Amendment
Exhibit B - Form of Warrant
Exhibit C - Form of Registration Rights Agreement
Exhibit D - Form of Irrevocable Transfer Agent Instructions
Exhibit E - Form of Employment Agreement
<PAGE>
CUSIP No. 296744 10 5 13D Page 38 of 74
EXHIBIT 2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER SET FORTH IN SECTION 4 OF THIS WARRANT
Warrant No. __ Number of Shares: 1,000,000
(subject to adjustment)
Date of Issuance: September 8, 2000
ESSEX CORPORATION
Common Stock Purchase Warrant
(Void after September 8, 2005)
Essex Corporation, a Virginia corporation (the "Company"), for value
received, hereby certifies that _________________, or its registered assigns
(the "Registered Holder"), is entitled, subject to the terms and conditions set
forth below, to purchase from the Company, at any time or from time to time on
or after the date of issuance and on or before 5:00 p.m. (Eastern time) on
September 8, 2005, 1,000,000 shares of Common Stock, of the Company, at a
purchase price of $.001 per share. The shares purchasable upon exercise of this
Warrant, and the purchase price per share, each as adjusted from time to time
pursuant to the provisions of this Warrant, are hereinafter referred to as the
"Warrant Shares" and the "Purchase Price," respectively.
1. Exercise.
(a) Subject to subsection 1(c) below, this Warrant may be exercised by
the Registered Holder, in whole or in part, by surrendering this Warrant, with
the purchase form appended hereto as Exhibit I duly executed by the Registered
Holder or by the Registered Holder's duly authorized attorney, at the principal
office of the Company, or at such other office or agency as the Company may
designate, accompanied by payment in full, in lawful money of the United States,
of the Purchase Price payable in respect of the number of Warrant Shares
purchased upon such exercise.
(b) Subject to subsection 1(c) below, the Registered Holder may, at its
option, elect to pay some or all of the Purchase Price payable upon an exercise
of this Warrant by canceling a portion of this Warrant exercisable for such
number of Warrant Shares as is determined by dividing (i) the total Purchase
Price payable in respect of the number of Warrant Shares being purchased upon
such exercise by (ii) the excess of the Fair Market Value per share of Common
Stock (as defined below) averaged over the five trading days immediately
preceding the Exercise Date (as defined in subsection 1(d) below) over the
Purchase Price per share. If the Registered Holder wishes to exercise this
Warrant pursuant to this method of payment with respect to the maximum number of
Warrant Shares purchasable pursuant to this method, then the number of Warrant
Shares so purchasable shall be equal to the total number of Warrant Shares,
minus the
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CUSIP No. 296744 10 5 13D Page 39 of 74
product obtained by multiplying (x) the total number of Warrant Shares by (y) a
fraction, the numerator of which shall be the Purchase Price per share and the
denominator of which shall be the Fair Market Value per share of Common Stock
averaged over the five trading days immediately preceding the Exercise Date. The
Fair Market Value per share of Common Stock shall be determined as follows:
(i) If the Common Stock is listed on a national securities
exchange, Nasdaq Stock Market, OTC Bulletin Board or another nationally
recognized trading system as of the Exercise Date, the Fair Market Value per
share of Common Stock shall be deemed to be the average of the high and low
reported sale prices per share of Common Stock (provided that if no such price
is reported on such day, the Fair Market Value per share of Common Stock shall
be determined pursuant to clause (ii)).
(ii) If the Common Stock is not listed on a national
securities exchange, Nasdaq Stock Market, OTC Bulletin Board or another
nationally recognized trading system as of the Exercise Date, the Fair Market
Value per share of Common Stock shall be deemed to be the amount most recently
determined by the Board of Directors to represent the fair market value per
share of the Common Stock (including without limitation a determination for
purposes of granting Common Stock options or issuing Common Stock under an
employee benefit plan of the Company); and, upon request of the Registered
Holder, the Board of Directors (or a representative thereof) shall promptly
notify the Registered Holder of the Fair Market Value per share of Common Stock.
Notwithstanding the foregoing, if the Board of Directors has not made such a
determination within the three-month period prior to the Exercise Date, then (A)
the Board of Directors shall make a determination of the Fair Market Value per
share of the Common Stock within 15 days of a request by the Registered Holder
that it do so, and (B) the exercise of this Warrant pursuant to this subsection
1(b) shall be delayed until such determination is made.
(c) This Warrant shall be exercisable only to the extent set forth
in this subsection 1(c):
(i) If the Fair Market Value of the Common Stock (determined
as provided in subsection 1(b)(i) above), for five consecutive trading days,
with aggregate volume on the market on which the Common Stock is traded for such
five consecutive trading days of at least 100,000 shares, exceeds the amount set
forth below under the heading "Share Price" (adjusted for stock splits, stock
dividends and similar recapitalizations), this Warrant shall immediately be
exercisable to purchase the number of Warrant Shares set forth below under the
heading "Cumulative Shares Exercisable:"
Share Price Cumulative Shares Exercisable
$10 250,000
$12 375,000
$14 500,000
$16 625,000
$18 750,000
$20 1,000,000
<PAGE>
CUSIP No. 296744 10 5 13D Page 40 of 74
(ii) In addition, this Warrant shall be exercisable to
purchase all of the Warrant Shares covered by this Warrant immediately prior to
the closing of (A) a sale of securities by the Company by means of a private
placement or pursuant to a registration statement, which results in gross
proceeds to the Company of at least $10,000,000 and which values the Company
immediately prior to such sale of securities at $50,000,000 or more, (B) any
sale of all or substantially all of the assets of the Company, or (C) any
merger, consolidation, sale of stock or other transaction or series of related
transactions in which the holders of capital stock of the Company before the
transaction no longer hold at least 50% of the capital stock of the Company
after the transaction.
(d) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above (the "Exercise Date"). At such time, the person or persons in whose
name or names any certificates for Warrant Shares shall be issuable upon such
exercise as provided in subsection 1(d) below shall be deemed to have become the
holder or holders of record of the Warrant Shares represented by such
certificates.
(e) As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which the Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which the Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the sum of (a) the number of such shares purchased by
the Registered Holder upon such exercise plus (b) the number of Warrant Shares
(if any) covered by the portion of this Warrant cancelled in payment of the
Purchase Price payable upon such exercise pursuant to subsection 1(b) above.
2. Adjustments.
(a) Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the date on which this Warrant was
first issued (the "Original Issue Date") effect a subdivision of the outstanding
Common Stock, the Purchase Price then in effect
<PAGE>
CUSIP No. 296744 10 5 13D Page 41 of 74
immediately before that subdivision shall be proportionately decreased. If the
Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, the Purchase Price then in
effect immediately before the combination shall be proportionately increased.
Any adjustment under this paragraph shall become effective at the close of
business on the date the subdivision or combination becomes effective.
(b) Adjustment for Certain Dividends and Distributions. In the
event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
(1) the numerator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date plus the number of
shares of Common Stock issuable in payment of such dividend or distribution;
provided, however, if such record date shall have been fixed and such dividend
is not fully paid or if such distribution is not fully made on the date fixed
therefor, the Purchase Price shall be recomputed accordingly as of the close of
business on such record date and thereafter the Purchase Price shall be adjusted
pursuant to this paragraph as of the time of actual payment of such dividends or
distributions.
(c) Adjustment in Number of Warrant Shares. When any adjustment is
required to be made in the Purchase Price pursuant to subsections 2(a) or 2(b),
the number of Warrant Shares purchasable upon the exercise of this Warrant shall
be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Purchase Price in effect immediately prior to
such adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
(d) Adjustments for Other Dividends and Distributions. In the
event the Company at any time or from time to time after the Original Issue Date
shall make or issue, or fix a record date for the determination of holders of
Common Stock entitled to receive, a dividend or other distribution payable in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than cash out of earnings or earned surplus, determined in
accordance with generally accepted accounting principles), then and in each such
event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable
hereunder, the kind and amount of securities of the Company and/or cash and
other property which the Registered Holder would have been entitled to receive
had this Warrant been exercised into Common Stock on the date of such event and
had the Registered Holder thereafter, during the period from the date of such
event to and including the Exercise Date, retained any such securities
receivable, giving application to all adjustments called for during such period
under this Section 2 with respect to the rights of the Registered Holder.
<PAGE>
CUSIP No. 296744 10 5 13D Page 42 of 74
(e) Adjustment for Mergers or Reorganizations, etc. If there
shall occur any reorganization, recapitalization, consolidation or merger
involving the Company in which the Common Stock is converted into or exchanged
for securities, cash or other property (other than a transaction covered by
subsections 2(a), 2(b) or 2(d)), then, following any such reorganization,
recapitalization, consolidation or merger, the Registered Holder shall receive
upon exercise hereof the kind and amount of securities, cash or other property
which the Registered Holder would have been entitled to receive if, immediately
prior to such reorganization, recapitalization, consolidation or merger, the
Registered Holder had held the number of shares of Common Stock subject to this
Warrant. In such case, appropriate adjustment (as determined in good faith by
the Board of Directors of the Company) shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of the Registered Holder, to the end that the provisions set forth in this
Section 2 (including provisions with respect to changes in and other adjustments
of the Purchase Price) shall thereafter be applicable, as nearly as reasonably
may be, in relation to any securities, cash or other property thereafter
deliverable upon the exercise of this Warrant.
(f) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Purchase Price pursuant to this Section 2, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, upon the written
request at any time of the Registered Holder, furnish or cause to be furnished
to the Registered Holder a certificate setting forth (i) the Purchase Price then
in effect and (ii) the number of shares of Common Stock and the amount, if any,
of other securities, cash or property which then would be received upon the
exercise of this Warrant.
3. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall make an
adjustment therefor in cash on the basis of the Fair Market Value per share of
Common Stock, as determined pursuant to subsection 1(b) above.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) the Company first shall
have been furnished with an opinion of legal counsel, reasonably satisfactory to
the Company (it being stipulated that an opinion of Hale and Dorr LLP shall be
satisfactory), to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
<PAGE>
CUSIP No. 296744 10 5 13D Page 43 of 74
(b) Notwithstanding the foregoing, no registration or opinion
of counsel shall be required for (i) a transfer by a Registered Holder to a
party specified in Section 10(b) below, or (ii) a transfer made in accordance
with Rule 144 under the Act.
(c) Each certificate representing Warrant Shares shall bear a
legend substantially in the following form:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended, and may not be offered, sold or otherwise
transferred, pledged or hypothecated unless and until
such securities are registered under such Act or an
opinion of counsel satisfactory to the Company is
obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing any
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
5. No Impairment. The Company will not, by amendment of its
charter or through reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the holder of this Warrant against impairment.
6. Notices of Record Date, etc. In the event:
(a) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to
receive any dividend or other distribution, or to receive any right to subscribe
for or purchase any shares of stock of any class or any other securities, or to
receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the Common Stock of the Company, any consolidation or merger
of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the surviving entity and its Common Stock is not
converted into or exchanged for any other securities or property), or any
transfer of all or substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
<PAGE>
CUSIP No. 296744 10 5 13D Page 44 of 74
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten days prior
to the record date or effective date for the event specified in such notice.
7. Reservation of Stock. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the exercise of this
Warrant, such number of Warrant Shares and other securities, cash and/or
property, as from time to time shall be issuable upon the exercise of this
Warrant.
8. Exchange of Warrants. Upon the surrender by the Registered
Holder, properly endorsed, to the Company at the principal office of the
Company, the Company will, subject to the provisions of Section 4 hereof, issue
and deliver to or upon the order of such Holder, at the Company's expense, a new
Warrant or Warrants of like tenor, in the name of the Registered Holder or as
the Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct, calling in the aggregate on the face or faces
thereof for the number of shares of Common Stock (or other securities, cash
and/or property) then issuable upon exercise of this Warrant.
9. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
10. Transfers, etc.
(a) The Company will maintain a register containing the name
and address of the Registered Holder of this Warrant. The Registered Holder may
change its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this
Warrant and all rights hereunder are transferable, in whole or in part, to any
partner, member, stockholder or affiliate of the holder, and any such transferee
shall have the rights of the Registered Holder to the extent of the portion of
this Warrant so transferred. Such transfer shall be effective upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company. Nothing contained in this
Section 10 shall limit the transferability of the Warrant Shares.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder as the absolute owner
hereof for all purposes; provided, however, that if and when this Warrant is
properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary.
<PAGE>
CUSIP No. 296744 10 5 13D Page 45 of 74
11. Mailing of Notices, etc. All notices and other
communications from the Company to the Registered Holder shall be mailed by
first-class certified or registered mail, postage prepaid, to the address last
furnished to the Company in writing by the Registered Holder. All notices and
other communications from the Registered Holder or in connection herewith to the
Company shall be mailed by first-class certified or registered mail, postage
prepaid, to the Company at its principal office set forth below. If the Company
should at any time change the location of its principal office to a place other
than as set forth below, it shall give prompt written notice to the Registered
Holder and thereafter all references in this Warrant to the location of its
principal office at the particular time shall be as so specified in such notice.
12. No Rights as Shareholder. Until the exercise of this
Warrant, the Registered Holder shall not have or exercise any rights by virtue
hereof as a shareholder of the Company. Notwithstanding the foregoing, in the
event (i) the Company effects a split of the Common Stock by means of a stock
dividend and the Purchase Price of and the number of Warrant Shares are adjusted
as of the date of the distribution of the dividend (rather than as of the record
date for such dividend), and (ii) the Registered Holder exercises this Warrant
between the record date and the distribution date for such stock dividend, the
Registered Holder shall be entitled to receive, on the distribution date, the
stock dividend with respect to the shares of Common Stock acquired upon such
exercise, notwithstanding the fact that such shares were not outstanding as of
the close of business on the record date for such stock dividend.
13. Change or Waiver. Any term of this Warrant may be changed
or waived only by an instrument in writing signed by the party against which
enforcement of the change or waiver is sought.
14. Section Headings. The section headings in this Warrant are
for the convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties.
15. Governing Law. This Warrant will be governed by and
construed in accordance with the internal laws of the Commonwealth of Virginia
(without reference to the conflicts of law provisions thereof).
<PAGE>
CUSIP No. 296744 10 5 13D Page 46 of 74
EXECUTED as of the Date of Issuance indicated above.
ESSEX CORPORATION
By:
---------------------------------
[Corporate Seal] Title:
------------------------------
ATTEST:
-------------------------
<PAGE>
CUSIP No. 296744 10 5 13D Page 47 of 74
EXHIBIT I
PURCHASE FORM
To: Dated:
----------------------- -------------------
The undersigned, pursuant to the provisions set forth in the attached Warrant
(No.), hereby irrevocably elects to purchase (check applicable box):
O _____ shares of the Common Stock covered by such Warrant; or
O the maximum number of shares of Common Stock covered by such Warrant
pursuant to the cashless exercise procedure set forth in Section 1(b).
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Warrant, which is $________.
Such payment takes the form of (check applicable box or boxes):
O $______ in lawful money of the United States; and/or
O the cancellation of such portion of the attached Warrant as is
exercisable for a total of _____ Warrant Shares (using a Fair Market Value
of $_____ per share for purposes of this calculation); and/or
O the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in Section 1(b), to exercise this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in Section 1(b).
Signature:
--------------------------------------
Address:
--------------------------------------
--------------------------------------
<PAGE>
CUSIP No. 296744 10 5 13D Page 48 of 74
EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. _) with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
Name of Assignee Address No. of Shares
Dated: Signature:
-------------------------- ---------------------------
Signature Guaranteed:
By:
-----------------------------
The signature should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
<PAGE>
CUSIP No. 296744 10 5 13D Page 49 of 74
EXHIBIT 3
SHAREHOLDERS' VOTING AGREEMENT
This Agreement dated as of September 8, 2000 is entered into by and
among GEF Optical Investment Company, LLC ("Global") and Networking Ventures,
L.L.C. ("NV") (Global and NV are referred to individually as a "Shareholder" and
collectively as the "Shareholders")
Recitals:
The Shareholders own certain outstanding shares of the Series B
Convertible Preferred Stock ("Series B Preferred") of Essex Corporation, a
Virginia corporation (the "Company"); and
The Shareholders wish to provide for certain voting agreements in the
manner set forth below.
In consideration of the mutual covenants contained herein, and for
other valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Voting of Shares.
(a) In any and all elections of directors of the Company
(whether at a meeting or by written consent in lieu of a meeting), each
Shareholder shall vote or cause to be voted all Shares (as defined in Section 2
below) owned by him or it, or over which it has voting control, and otherwise
use his or its respective best efforts, so as to designate two directors
designated by Global, two directors designated by NV and one director mutually
acceptable to the Shareholders. The directors initially designated by Global are
H. Jeffrey Leonard and Marie Minton; the directors initially designated by NV
are John Hannon and Caroline Pisano. No Shareholder shall vote to remove any
director, except for bad faith or willful misconduct, without the prior written
consent of the other Shareholder.
(b) In any matter to be voted on at a meeting of Shareholders
of the Company or by written consent in lieu of a meeting (other than the
election of directors), each Shareholder shall consult with the other prior to
such vote or consent and each Shareholder shall cast its vote or grant or
withhold its consent in the manner mutually agreed by the Shareholders at such
time.
(c) In any matter to be voted upon by the Company's directors,
whether at a meeting of directors or by action of directors in lieu of meeting,
each Shareholder shall cause the directors designated by it to consult with each
other prior to such vote or consent and to vote or consent in the manner
mutually agreed to by such directors at that time.
2. Shares. "Shares" shall mean and include any and all shares of
Series B Preferred and/or shares of capital stock of the Company, by whatever
name called, which carry voting rights (including voting rights which arise by
reason of default) and shall include any such shares now owned or subsequently
acquired by a Shareholder, however acquired, including without limitation stock
splits and stock dividends.
<PAGE>
CUSIP No. 296744 10 5 13D Page 50 of 74
3. Termination. This Agreement shall terminate in its entirety on the
second anniversary of the date of this Agreement.
4. No Revocation. The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment, modification or
termination effected in accordance with Section 3 or 6(e) hereof. Nothing in
this Section 4 shall be construed as limiting the provisions of Section 3 or
6(e) hereof.
5. Transfers of Rights. Any transferee to whom Shares are transferred
by a Shareholder, whether voluntarily or by operation of law, shall be bound by
the voting obligations imposed upon the transferor under this Agreement, to the
same extent as if such transferee were a Shareholder hereunder and no
Shareholder shall transfer any Shares unless the transferee agrees in writing to
be bound by this Agreement.
6. General.
7. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
8. Specific Performance. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, each
Shareholder shall be entitled to specific performance of the agreements and
obligations of the Shareholders hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Virginia (without
reference to the conflicts of law provisions thereof).
10. Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed delivered (i) two
business days after being send by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after being sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery, in each case to the intended recipient at its address set forth in
Schedule A hereto, or at such other address or addresses as may have been
furnished to the other parties hereto in writing by such Shareholder.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
11. Complete Agreement; Amendments. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and
<PAGE>
CUSIP No. 296744 10 5 13D Page 51 of 74
supersedes all prior agreements and understandings relating to such subject
matter. No amendment or termination of, or waiver under, any provision of this
Agreement shall be valid unless in writing and signed by the Shareholders.
12. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
13. Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
and all of which together shall constitute one and the same document. This
Agreement may be executed by facsimile signatures.
14. Section Headings. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
<PAGE>
CUSIP No. 296744 10 5 13D Page 52 of 74
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
SHAREHOLDERS:
GEF OPTICAL INVESTMENT
COMPANY, LLC
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
NETWORKING VENTURES, L.L.C.
By:
----------------------------------------
Name:
----------------------------------
Title:
----------------------------------
<PAGE>
CUSIP No. 296744 10 5 13D Page 53 of 74
EXHIBIT A
Shareholders
GEF Optical Investment Company, LLC
1225 I Street
Suite 900
Washington, DC 20005
Networking Ventures, L.L.C.
8970 Route 108
Suite B
Columbia, Maryland 21045
<PAGE>
CUSIP No. 296744 10 5 13D Page 54 of 74
EXHIBIT 4
ARTICLES OF AMENDMENT
OF
ESSEX CORPORATION
To the State Corporation Commission
Commonwealth of Virginia
The following Articles of Amendment are hereby submitted pursuant to
the provisions of the Virginia Stock Corporation Act on behalf of the
corporation hereinafter named.
I. The name of the corporation (hereinafter referred to as the
"Corporation") is Essex Corporation.
II. Article (c) of the Articles of Incorporation of the Corporation is
hereby amended to designate a new series of the Corporation's Preferred Stock to
be known as "Series B Convertible Preferred Stock" by adding the following as
new Section (c)(B):
(c)(B) Series B Convertible Preferred Stock. Five Hundred Thousand
(500,000) shares of Preferred Stock of the Corporation are hereby designated as
Series B Convertible Preferred Stock ("Series B Preferred"). The preferences,
privileges and relative rights relating to the Series B Preferred are as
follows:
1. Dividend Provisions. The Corporation shall not declare or
pay any distributions on shares of Common Stock (other than a distribution
described in Section 3(d)(i) below) until the holders of the Series B Preferred
then outstanding shall have first received, or simultaneously receive, out of
any assets legally available therefor a distribution on each outstanding share
of Series B Preferred in an amount at least equal to the product of (i) the per
share amount, if any, of the dividends or other distributions to be declared,
paid or set aside for the Common Stock, multiplied by (ii) the number of whole
shares of Common Stock into which such share of Series B Preferred is then
convertible. Such dividends shall not be cumulative.
2. Liquidation. In the event of any liquidation, dissolution
or winding up of the Corporation, either voluntary or involuntary, the assets of
the Corporation available for distribution to stockholders shall be distributed
among the holders of Common Stock and Series B Preferred pro rata based on the
number of shares of Common Stock held by each such holder or into which such
holder's shares of Series B Preferred are then convertible.
3. Conversion. The holders of Series B Preferred shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Subject to Section 3(c), each share
of Series B Preferred shall be convertible, at the option of the holder thereof,
at any time after the date of issuance of such share, at the office of the
Corporation or any transfer agent for such
<PAGE>
CUSIP No. 296744 10 5 13D Page 55 of 74
stock, into four (4) fully paid and nonassessable shares of Common Stock (the
"Series B Conversion Rate"). The Series B Conversion Rate shall be subject to
adjustment as set forth in Section 3(d).
(b) Automatic Conversion. Each share of Series B
Preferred shall automatically be converted into shares of Common Stock at the
Series B Conversion Rate at the time in effect for such share on the second
anniversary of the filing of these Articles of Amendment with the Virginia State
Corporation Commission.
(c) Mechanics of Conversion. Before any holder of Series
B Preferred shall be entitled to convert the same into shares of Common Stock,
he shall surrender the certificate or certificates therefor, duly endorsed, at
the office of the Corporation or of any transfer agent for such series of Series
B Preferred, and shall give written notice to the Corporation at its principal
corporate office, of the election to convert the same and shall state therein
the name or names in which the certificate or certificates for shares of Common
Stock are to be issued. The Corporation shall, immediately thereafter, issue and
deliver at such office to such holder of Series B Preferred, or to the nominee
or nominees of such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series B Preferred to be
converted, and the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock as of such date. If the
conversion is in connection with an acquisition or an underwritten offering of
securities registered pursuant to the Securities Act of 1933, as amended, the
conversion may, at the option of any holder tendering such Series B Preferred
for conversion, be conditioned upon the closing of such acquisition or the
closing with the underwriters of the sale of securities pursuant to such
offering, in which event the person(s) entitled to receive Common Stock upon
conversion of such Series B Preferred shall not be deemed to have converted such
Series B Preferred until immediately prior to the closing of such acquisition or
such sale of securities.
(d) Conversion Rate Adjustments of Series B Preferred for
Certain Splits and Combinations. The Series B Conversion Rate shall be subject
to adjustment from time to time as follows:
(i) Stock Splits and Dividends. In the event the
Corporation should at any time or from time to time fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend, distribution, split or subdivision if no record date is fixed),
the Series B Conversion Rate shall be appropriately adjusted so that the number
of shares of Common Stock issuable on conversion of each share of Series B
Preferred shall be increased in proportion to such increase of the aggregate of
shares of Common Stock outstanding and the number of shares issuable with
respect to such Common Stock Equivalents.
<PAGE>
CUSIP No. 296744 10 5 13D Page 56 of 74
(ii) Reverse Stock Splits. If the number of shares of
Common Stock outstanding at any time is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date of such
combination, the Series B Conversion Rate for each share of Series B Preferred
shall be appropriately adjusted so that the number of shares of Common Stock
issuable on conversion of each share of Series B Preferred shall be decreased in
proportion to such decrease in outstanding shares of Common Stock.
(e) Other Distributions. In the event the Corporation shall
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by the Corporation or other persons, assets (excluding cash
dividends) or options or rights then, in each such case for the purpose of this
Section 3(e), the holders of Series B Preferred shall be entitled to a
proportionate share of any such distribution as though they were the holders of
the number of shares of Common Stock of the Corporation into which their shares
of Series B Preferred are convertible as of the record date fixed for the
determination of the holders of Common Stock of the Corporation entitled to
receive such distribution.
(f) Mergers, etc. If, at any time or from time to time,
there shall be a merger or consolidation of the Corporation with or into another
corporation, or the sale of all or substantially all of the Corporation's
properties and assets to any other person and entity, then as a part of such
reorganization, merger, consolidation or sale, provision shall be made so that
the holder of the Series B Preferred shall thereafter be entitled to receive
upon conversion of the Series B Preferred, the number of shares of capital stock
or other securities or property of the Corporation, or of the successor
corporation resulting from such merger or consolidation or sale, to which the
holder of shares of Common Stock deliverable upon conversion would have been
entitled on such reorganization, merger, consolidation, or sale. In any such
case, appropriate adjustment shall be made in the application of the provisions
of this section with respect to the rights of the holders of the Series B
Preferred after the reorganization, merger, consolidation or sale to the end
that the provisions of this section (including adjustment of the Series B
Conversion Rate then in effect and the number of shares of Common Stock
receivable upon conversion of the Series B Preferred) shall be applicable after
that event as nearly equivalent hereto as may be practicable.
(g) Recapitalizations. If at any time or from time to time
there shall be a recapitalization of the Common Stock (other than a subdivision,
combination or merger or other transaction provided for elsewhere in this
Section 3) provision shall be made so that the holders of the Series B Preferred
shall thereafter be entitled to receive upon conversion of such Series B
Preferred the number of shares of stock or other securities or property of the
Corporation or otherwise, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 3 with respect to the rights of the holders of such Series B
Preferred after the recapitalization to the end that the provisions of this
Section 3 (including adjustment of the Series B Conversion Rate then in effect
and the number of shares purchasable upon conversion of such Series B Preferred)
shall be applicable after that event and be as nearly equivalent as practicable.
<PAGE>
CUSIP No. 296744 10 5 13D Page 57 of 74
(h) No Impairment. The Corporation will not, by amendment
of its Articles of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by the Corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of Series B Preferred against impairment.
(i) No Fractional Shares and Certificate as to Adjustments.
(i) No fractional shares shall be issued upon the
conversion of any share or shares of the Series B Preferred, and the number of
shares of Common Stock to be issued shall be rounded to the nearest whole share.
The number of shares issuable upon such conversion shall be determined on the
basis of the total number of shares of Series B Preferred the holder is at the
time converting into Common Stock and the number of shares of Common Stock
issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of the Series B Conversion Rate pursuant to this Section 3, the
Corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series B Preferred a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of shares of a series of Series B Preferred, furnish or cause
to be furnished to such holder a like certificate setting forth (A) such
adjustment and readjustment, (B) the new Series B Conversion Rate, and (C) the
number of shares of Common Stock and the amount, if any, of other property which
at the time would be received upon the conversion of a share of Series B
Preferred.
(j) Notices of Record Date. In the event of any taking by
the Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, the Corporation
shall send to each holder of Series B Preferred, at least ten (10) days prior to
the date specified therein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and the amount and character of such dividend, distribution or right.
(k) Reservation of Stock Issuable Upon Conversion. The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the shares of Series B Preferred, such number of its shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding shares of such Series B Preferred; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of Series B Preferred,
in addition to such other remedies as shall be available to the holder of such
Series B Preferred, the Corporation will take
<PAGE>
CUSIP No. 296744 10 5 13D Page 58 of 74
such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes, including, without limitation,
engaging in best efforts to obtain the requisite shareholder approval of any
necessary amendment to the Corporation's Articles of Incorporation.
(l) Notices. Any notice required by the provisions of this
Section 3 to be given to the holders of shares of Series B Preferred shall be
deemed given if delivered to such shareholder by a nationally recognized
overnight delivery service at his address appearing on the books of the
Corporation.
4. Voting Rights.
(a) Except as provided in Section 4(b) or Section 4(c)
below, the holders of record of shares of Series B Preferred shall be entitled
to such number of votes for each share of Series B Preferred standing in each
such person's name on the stock transfer records of the Corporation as shall be
necessary to entitle the holders of all shares of Series B Preferred to vote, in
the aggregate, 51% of the total voting power of all holders of all capital stock
of the Corporation. Promptly following the fixing of a record date for each
annual or special meeting of shareholders or prior to the taking of any action
by written consent, the Board of Directors of the Corporation (the "Board")
shall determine the number of votes per share of Series B Preferred that each
holder of record of Series B Preferred shall be entitled to cast to implement
the foregoing voting provisions. The determination of such number of votes by
the Board shall be final and shall be set forth in the notice of such meeting of
shareholders or notice of consent delivered to the holders of capital stock of
the Corporation.
(b) Notwithstanding the provisions of Section 4(a) above,
on any matter set forth in clauses (i) or (ii) below submitted for consideration
or action by the shareholders at any meeting of shareholders (or by written
consent of shareholders in lieu of meeting) each holder of record of shares of
Series B Preferred shall be entitled to one vote for each share of Common Stock
into which such holder's shares of Series B Preferred are convertible as of the
record date for determining shareholders entitled to vote on such matter:
(i) any sale of all or substantially all of the
assets of the Corporation which values the Corporation at less than $50,000,000;
or
(ii) any merger (other than a merger in which the
holders of capital stock of the Corporation before the transaction continue to
hold more than 50% of the capital stock of the Corporation after the
transaction) or consolidation to which the Corporation is a party which values
the Corporation at less than $50,000,000.
Insofar as the consideration paid in a sale of assets, merger or
consolidation referenced in clause (i) or (ii) above consists of property other
than cash, the value of the Corporation shall be computed based on the fair
market value of such property as of the applicable record date. In the event any
consideration in such transaction is to be paid on a deferred basis, such
consideration shall be valued on a present value basis, applying a discount
factor of 8%. Any dispute concerning valuation of the Corporation shall be
resolved by an investment banking firm selected by the Board.
<PAGE>
CUSIP No. 296744 10 5 13D Page 59 of 74
(c) Notwithstanding the provisions of Section 4(a)
above, each holder of record of shares of Series B Preferred shall be entitled
to one vote for each share of Common Stock into which such holder's shares of
Series B Preferred are convertible at such time as the holders of Series B
Preferred default beyond applicable grace and cure periods on any obligation
they have to purchase Series B Preferred after the date of these Articles of
Amendment.
III. The capital stock of the Corporation shall have no par value.
IV. The date of adoption of the amendments herein was
_________________, 2000. Such amendments were duly adopted by the Board of
Directors of the Corporation at a meeting held on _____________, 2000, pursuant
to the provisions of the Virginia Stock Corporation Act. The foregoing
amendments do not require shareholder approval.
IN WITNESS WHEREOF, Essex Corporation has caused these Articles of
Amendment to be executed by its President and attested to by its Assistant
Secretary as of this __ day of _____________, 2000.
ESSEX CORPORATION
By:
, President
ATTEST:
--------------------------------------
, Assistant Secretary
<PAGE>
CUSIP No. 296744 10 5 13D Page 60 of 74
EXHIBIT 5
ESSEX CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of September 7, 2000 is entered into by and among Essex
Corporation, a Virginia corporation (the "Company"), and the individuals and
entities listed on Exhibit A attached hereto (the "Purchasers").
Recitals
WHEREAS, the Company and the Purchasers have entered into a Securities Purchase
Agreement of even date herewith (the "Purchase Agreement"); and
WHEREAS, the Company and the Purchasers desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
in this Agreement, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Initiating Holders" means the Stockholders initiating a
request for registration pursuant to Section 2.1(a) or 2.1(b), as the case may
be.
"Other Holders" shall mean holders of securities of the
Company (other than the Stockholders) who are entitled, by contract with the
Company, to have securities included in a Registration Statement.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
<PAGE>
CUSIP No. 296744 10 5 13D Page 61 of 74
"Registration Statement" means a registration statement filed
by the Company with the Commission for a public offering and sale of securities
of the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a similar limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registration Expenses" means the expenses described in
Section 2.4.
"Registrable Shares" means (i) the shares of Common Stock
issued or issuable upon conversion of the Shares, (ii) the shares of Common
Stock issued or issuable upon exercise of the Warrants issued pursuant to the
Purchase Agreement and (iii) any other shares of Common Stock issued in respect
of such shares (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); provided, however, that shares of Common
Stock which are Registrable Shares shall cease to be Registrable Shares upon (i)
any sale pursuant to a Registration Statement or Rule 144 under the Securities
Act or (ii) any sale in any manner to a person or entity which, by virtue of
Section 3 of this Agreement, is not entitled to the rights provided by this
Agreement. Wherever reference is made in this Agreement to a request or consent
of holders of a certain percentage of Registrable Shares, the determination of
such percentage shall include shares of Common Stock issuable upon conversion of
the Shares even if such conversion has not been effected.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Selling Stockholder" means any Stockholder owning Registrable
Shares included in a Registration Statement.
"Shares" shall mean the Preferred Stock sold under the
Purchase Agreement.
"Stockholders" means the Purchasers and any persons or
entities to whom the rights granted under this Agreement are transferred by any
Purchasers, their successors or assigns pursuant to Section 3 hereof.
2. Registration Rights
2.1 Required Registrations.
(a) At any time after June 30, 2001, a Stockholder or
Stockholders holding in the aggregate at least 51% of the Registrable Shares
then outstanding may request, in writing, that the Company effect the
registration on Form S-1 or Form S-2 (or any successor form) of Registrable
Shares owned by such Stockholder or Stockholders having an aggregate value of at
least $1,000,000 (based on the then current market price or fair value).
(b) At any time after the Company becomes eligible to
file a Registration Statement on Form S-3 (or any successor form relating to
secondary offerings), a Stockholder or Stockholders holding in the aggregate at
least 51% of the Registrable Shares then outstanding may request, in writing,
that the Company effect the registration on Form S-3 (or such successor form),
of Registrable Shares having an aggregate value of at least $1,000,000 (based on
the then current public market price).
<PAGE>
CUSIP No. 296744 10 5 13D Page 62 of 74
(c) Upon receipt of any request for registration
pursuant to this Section 2, the Company shall promptly give written notice of
such proposed registration to all other Stockholders. Such Stockholders shall
have the right, by giving written notice to the Company within 30 days after the
Company provides its notice, to elect to have included in such registration such
of their Registrable Shares as such Stockholders may request in such notice of
election, subject in the case of an underwritten offering to the approval of the
managing underwriter as provided in Section 2.1(d) below. Thereupon, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration on an appropriate registration form of all Registrable Shares which
the Company has been requested to so register (provided, however, that in the
case of a registration requested under Section 2.1(b), the Company will only be
obligated to effect such registration on Form S-3 (or any successor form)).
(d) If the Initiating Holders intend to distribute
the Registrable Shares covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 2.1(a) or (b), as the case may be, and the Company shall include such
information in its written notice referred to in Section 2.1(c). The right of
any other Stockholder to include its Registrable Shares in such registration
pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon
such other Stockholder's participation in such underwriting on the terms set
forth herein. If the managing underwriter determines that the marketing factors
require a limitation of the number of shares to be underwritten, the number of
Registrable Shares to be included in a Registration Statement filed pursuant to
this Section 2.1, shall be reduced pro rata among the requesting Stockholders
based on the quotient of (1) the total Registrable Shares to be included in the
Registration Statement, divided by (2) the total number of Registrable Shares
that requested registration.
(e) The Initiating Holders shall have the right to
select the managing underwriter(s) for any underwritten offering requested
pursuant to Section 2.1(a) or (b), subject to the approval of the Company, which
approval will not be unreasonably withheld.
(f) The Company shall not be required to effect more
than two registrations pursuant to Section 2.1(a). In addition, the Company
shall not be required to effect any registration on Form S-3 or any successor
form relating to secondary offerings more than once in any twelve-month period.
For purposes of this Section 2.1(f), a Registration Statement shall not be
counted until such time as such Registration Statement has been declared
effective by the Commission (unless the Initiating Holders withdraw their
request for such registration (other than as a result of information concerning
the business or financial condition of the Company which is made known to the
Stockholders after the date on which such registration was requested) and elect
not to pay the Registration Expenses therefor pursuant to Section 2.4). For
purposes of this Section 2.1(f), a Registration Statement shall not be counted
if, as a result of an exercise of the underwriter's cut-back provisions, less
than 50% of the total number of Registrable Shares that Stockholders have
requested to be included in such Registration Statement are so included.
<PAGE>
CUSIP No. 296744 10 5 13D Page 63 of 74
(g) If at the time of any request to register
Registrable Shares by Initiating Holders pursuant to this Section 2.1, the
Company is engaged or has plans to engage in a registered public offering or is
engaged in any other activity which, in the good faith determination of the
Company's Board of Directors, would be adversely affected by the requested
registration, then the Company may at its option direct that such request be
delayed for a period not in excess of 90 days from the date of such request,
such right to delay a request to be exercised by the Company not more than once
in any 12-month period.
2.2 Incidental Registration.
(a) Whenever the Company proposes to file a
Registration Statement (other than a Registration Statement filed pursuant to
Section 2.1) at any time and from time to time, it will, prior to such filing,
give written notice to all Stockholders of its intention to do so; provided,
that no such notice need be given if no Registrable Shares are to be included
therein as a result of a determination of the managing underwriter pursuant to
Section 2.2(b). Upon the written request of a Stockholder or Stockholders given
within 20 days after the Company provides such notice (which request shall state
the intended method of disposition of such Registrable Shares), the Company
shall use its best efforts to cause all Registrable Shares which the Company has
been requested by such Stockholder or Stockholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Stockholder or Stockholders; provided that the Company shall
have the right to postpone or withdraw any registration effected pursuant to
this Section 2.2 without obligation to any Stockholder.
(b) If the registration for which the Company gives
notice pursuant to Section 2.2(a) is a registered public offering involving an
underwriting, the Company shall so advise the Stockholders as a part of the
written notice given pursuant to Section 2.2(a). In such event, the right of any
Stockholder to include its Registrable Shares in such registration pursuant to
Section 2.2 shall be conditioned upon such Stockholder's participation in such
underwriting on the terms set forth herein. All Stockholders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for the underwriting by the Company, provided that such underwriting
agreement shall not provide for indemnification or contribution obligations on
the part of Stockholders materially greater than the obligations of the
Stockholders pursuant to Section 2.5. Notwithstanding any other provision of
this Section 2.2, if the managing underwriter determines that the inclusion of
all shares requested to be registered would adversely affect the offering, the
Company may limit the number of Registrable Shares to be included in the
registration and underwriting. The Company shall so advise all holders of
Registrable Shares requesting registration, and the number of shares that are
entitled to be included in the registration and underwriting shall be allocated
in the following manner. The securities of the Company held by holders other
than Stockholders and Other Holders shall be excluded from such registration and
underwriting to the extent deemed advisable by the managing underwriter, and, if
a further limitation on the number of shares is required, the number of shares
that may be included in such registration and underwriting shall be allocated
among all Stockholders and Other Holders requesting registration in proportion,
as nearly as practicable, to the respective number of shares of Common Stock (on
an as-converted basis) which they held at the time the
<PAGE>
CUSIP No. 296744 10 5 13D Page 64 of 74
Company gives the notice specified in Section 2.2(a), provided that the number
of Registrable Shares permitted to be included therein shall in any event be at
least 50% of the securities included therein that are not being sold for the
account of the Company (based on aggregate market values). If any Stockholder or
Other Holder would thus be entitled to include more securities than such holder
requested to be registered, the excess shall be allocated among other requesting
Stockholders and Other Holders pro rata in the manner described in the preceding
sentence. If any holder of Registrable Shares or any officer, director or Other
Holder disapproves of the terms of any such underwriting, such person may elect
to withdraw therefrom by written notice to the Company, and any Registrable
Shares or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
2.3 Registration Procedures.
(a) If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration
Statement with respect to such Registrable Shares and use its best efforts to
cause that Registration Statement to become effective as soon as possible;
(ii) as expeditiously as possible prepare and
file with the Commission any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement as may be
necessary to comply with the provisions of the Securities Act (including the
anti-fraud provisions thereof) and to keep the Registration Statement effective
for six months from the effective date or such lesser period until all such
Registrable Shares are sold;
(iii) as expeditiously as possible furnish to
each Selling Stockholder such reasonable numbers of copies of the Prospectus,
including any preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Selling Stockholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its best
efforts to register or qualify the Registrable Shares covered by the
Registration Statement under the securities or Blue Sky laws of such states as
the Selling Stockholders shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable the Selling Stockholders
to consummate the public sale or other disposition in such states of the
Registrable Shares owned by the Selling Stockholder; provided, however, that the
Company shall not be required in connection with this paragraph (iv) to qualify
as a foreign corporation or execute a general consent to service of process in
any jurisdiction;
(v) as expeditiously as possible, cause all such
Registrable Shares to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed;
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CUSIP No. 296744 10 5 13D Page 65 of 74
(vi) promptly provide a transfer agent and
registrar for all such Registrable Shares not later than the effective date of
such registration statement;
(vii) promptly make available for inspection by
the Selling Stockholders, any managing underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney or
accountant or other agent retained by any such underwriter or selected by the
Selling Stockholders, all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such Registration Statement;
(viii) as expeditiously as possible, notify each
Selling Stockholder, promptly after it shall receive notice thereof, of the time
when such Registration Statement has become effective or a supplement to any
Prospectus forming a part of such Registration Statement has been filed; and
(ix) as expeditiously as possible following the
effectiveness of such Registration Statement, notify each seller of such
Registrable Shares of any request by the Commission for the amending or
supplementing of such Registration Statement or Prospectus.
(b) If the Company has delivered a Prospectus to the
Selling Stockholders and after having done so the Prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the Selling Stockholders and, if requested, the Selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall promptly provide the Selling
Stockholders with revised Prospectuses and, following receipt of the revised
Prospectuses, the Selling Stockholders shall be free to resume making offers of
the Registrable Shares.
(c) In the event that, in the judgment of the
Company, it is advisable to suspend use of a Prospectus included in a
Registration Statement due to pending material developments or other events that
have not yet been publicly disclosed and as to which the Company believes public
disclosure would be detrimental to the Company, the Company shall notify all
Selling Stockholders to such effect, and, upon receipt of such notice, each such
Selling Stockholder shall immediately discontinue any sales of Registrable
Shares pursuant to such Registration Statement until such Selling Stockholder
has received copies of a supplemented or amended Prospectus or until such
Selling Stockholder is advised in writing by the Company that the then current
Prospectus may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such
Prospectus.
2.4 Allocation of Expenses. The Company will pay all
Registration Expenses for all registrations under this Agreement; provided,
however, that if a registration under Section 2.1 is withdrawn at the request of
the Initiating Holders (other than as a result of information concerning the
business or financial condition of the Company which is made known to the
Stockholders after the date on which such registration was requested) and if the
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CUSIP No. 296744 10 5 13D Page 66 of 74
Initiating Holders elect not to have such registration counted as a registration
requested under Section 2.1, the requesting Stockholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Agreement, including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and expenses of counsel for the Company and the fees and expenses
of one counsel selected by the Selling Stockholders to represent the Selling
Stockholders, state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of Selling
Stockholders' own counsel (other than the counsel selected to represent all
Selling Stockholders).
2.5 Indemnification and Contribution.
(a) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Selling Stockholder, each
underwriter of such Registrable Shares, and each other person, if any, who
controls such Selling Stockholder or underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such Selling Stockholder, underwriter or
controlling person may become subject under the Securities Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such Selling Stockholder, underwriter and each such
controlling person for any legal or any other expenses reasonably incurred by
such Selling Stockholder, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such Selling Stockholder, underwriter or controlling
person specifically for use in the preparation thereof.
(b) In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, each
Selling Stockholder, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
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CUSIP No. 296744 10 5 13D Page 67 of 74
statement or alleged untrue statement of a material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information relating to such Selling
Stockholder furnished in writing to the Company by or on behalf of such Selling
Stockholder specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement; provided, however,
that the obligations of a Selling Stockholder hereunder shall be limited to an
amount equal to the net proceeds to such Selling Stockholder of Registrable
Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this
Section (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except to the extent
that the Indemnifying Party is adversely affected by such failure. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding; provided further that in no event shall the
Indemnifying Party be required to pay the expenses of more than one law firm per
jurisdiction as counsel for the Indemnified Party. The Indemnifying Party also
shall be responsible for the expenses of such defense if the Indemnifying Party
does not elect to assume such defense. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation, and no Indemnified Party shall consent to entry of
any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Section 2.5 is due in accordance with its terms but for any reason is held to be
unavailable to an Indemnified Party in respect to any losses, claims, damages
and liabilities referred to herein, then the Indemnifying Party shall, in lieu
of indemnifying such Indemnified Party, contribute to the amount paid or payable
by such Indemnified Party as a result of such losses, claims, damages or
liabilities to which such party may be subject in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
Selling Stockholders on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other
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CUSIP No. 296744 10 5 13D Page 68 of 74
relevant equitable considerations. The relative fault of the Company and the
Selling Stockholders shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material fact related to
information supplied by the Company or the Selling Stockholders and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Selling Stockholders
agree that it would not be just and equitable if contribution pursuant to this
Section 2.5 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph of Section 2.5, (a)
in no case shall any one Selling Stockholder be liable or responsible for any
amount in excess of the net proceeds received by such Selling Stockholder from
the offering of Registrable Shares and (b) the Company shall be liable and
responsible for any amount in excess of such proceeds; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve such party from any other obligation it or they may have
thereunder or otherwise under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its prior written consent, which consent shall not be unreasonably
withheld.
2.6 Other Matters with Respect to Underwritten Offerings. In
the event that Registrable Shares are sold pursuant to a Registration Statement
in an underwritten offering pursuant to Section 2.1, the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its best efforts to cause
its legal counsel to render customary opinions to the underwriters with respect
to the Registration Statement; and (c) use its best efforts to cause its
independent public accounting firm to issue customary "cold comfort letters" to
the underwriters with respect to the Registration Statement.
2.7 Information by Holder. Each holder of Registrable Shares
included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
2.8 "Stand-Off" Agreement; Confidentiality of Notices. Each
Stockholder, if requested by the Company and the managing underwriter of an
underwritten public offering by the Company of Common Stock, shall not sell or
otherwise transfer or dispose of any Registrable Shares or other securities of
the Company held by such Stockholder for a period of 90 days following the
effective date of a Registration Statement; provided, that all stockholders of
the Company then holding at least 5% of the outstanding Common Stock (on an
as-converted basis) and all officers and directors of the Company enter into
similar agreements.
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CUSIP No. 296744 10 5 13D Page 69 of 74
The Company may impose stop-transfer instructions with respect
to the Registrable Shares or other securities subject to the foregoing
restriction until the end of such 90-day period.
Any Stockholder receiving any written notice from the Company
regarding the Company's plans to file a Registration Statement shall treat such
notice confidentially and shall not disclose such information to any person
other than as necessary to exercise its rights under this Agreement.
2.9 Limitations on Subsequent Registration Rights. The Company
shall not, without the prior written consent of Stockholders holding at least
51% of the Registrable Shares then held by all Stockholders, enter into any
agreement (other than this Agreement) with any holder or prospective holder of
any securities of the Company which grant such holder or prospective holder
rights to include securities of the Company in any Registration Statement,
unless (a) such rights to include securities in a registration initiated by the
Company or by Stockholders are not more favorable than the rights granted to
Other Holders under Section 2.2 of this Agreement, and (b) no rights are granted
to initiate a registration, other than registration pursuant to a registration
statement on Form S-3 (or its successor) in which Stockholders are entitled to
include Registrable Shares on a pro rata basis with such holders based on the
number of shares of Common Stock (on an as-converted basis) owned by
Stockholders and such holders.
2.10 Rule 144 Requirements. After the earliest of (i) the
closing of the sale of securities of the Company pursuant to a Registration
Statement, (ii) the registration by the Company of a class of securities under
Section 12 of the Exchange Act, or (iii) the issuance by the Company of an
offering circular pursuant to Regulation A under the Securities Act, the Company
agrees to:
(a) make and keep current public information about the
Company available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in
a timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon
request (i) a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements),
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents of the Company as such holder may
reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
2.11 Termination. All of the Company's obligations to
register Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall
terminate five years after the date of this Agreement.
3.0 Transfers of Rights. This Agreement, and the rights and
obligations of each Purchaser hereunder, may be assigned by such Purchaser to
any partner, member, stockholder or
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CUSIP No. 296744 10 5 13D Page 70 of 74
affiliate of such Purchaser, and such transferee shall be deemed a "Purchaser"
for purposes of this Agreement; provided that the transferee provides written
notice of such assignment to the Company and agrees in writing to be bound
hereby.
4.0 General.
(a) Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement.
(b) Specific Performance. In addition to any and all
other remedies that may be available at law in the event of any breach of this
Agreement, each Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the Commonwealth of
Virginia (without reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and
other communications under this Agreement shall be in writing and shall be
deemed delivered (i) two business days after being sent by registered or
certified mail, return receipt requested, postage prepaid or (ii) one business
day after being sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, in each case to the intended recipient
as set forth below:
If to the Company, at 9150 Guilford Road, Columbia, MD
21046, Attention: President, or at such other address or addresses as may have
been furnished in writing by the Company to the Purchasers, with a copy to
Whiteford, Taylor & Preston, L.L.P., 7 Saint Paul Street, Baltimore, Maryland
21202-1626, Attention: D. Scott Freed; or
If to a Purchaser, at his or its address set forth on
Exhibit A, or at such other address or addresses as may have been furnished to
the Company in writing by such Purchaser, with a copy to Hale and Dorr LLP,
11951 Freedom Drive, Reston, VA 20190, Attention: William F. Winslow.
Any party may give any notice, request, consent or
other communication under this Agreement using any other means (including,
without limitation, personal delivery, messenger service, telecopy, first class
mail or electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until it is
actually received by the party for whom it is intended. Any party may change the
address to which notices, requests, consents or other communications hereunder
are to be delivered by giving the other parties notice in the manner set forth
in this Section.
(e) Complete Agreement. This Agreement constitutes the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
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CUSIP No. 296744 10 5 13D Page 71 of 74
(f) Amendments and Waivers. Any term of this Agreement
may be amended or terminated and the observance of any term of this Agreement
may be waived with respect to all parties to this Agreement (either generally or
in a particular instance and either retroactively or prospectively), with the
written consent of the Company and the holders of at least 51% of the
Registrable Shares held by all of the Stockholders. Notwithstanding the
foregoing, this Agreement may be amended or terminated, and any right hereunder
may be waived with respect to all parties to this Agreement with the consent of
the holders of less than all Registrable Shares only in a manner which applies
to all such holders in the same fashion. Any such amendment, termination or
waiver effected in accordance with this Section 4(f) shall be binding on all
parties hereto, even if they do not execute such consent and the Company. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
(g) Pronouns. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
(h) Counterparts; Facsimile Signatures. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, and all of which together shall constitute one and the same
document. This Agreement may be executed by facsimile signatures.
(i) Section Headings. The section headings are for
the convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties.
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CUSIP No. 296744 10 5 13D Page 72 of 74
Executed as of the date first written above.
COMPANY:
ESSEX CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
PURCHASERS:
GEF OPTICAL INVESTMENT COMPANY, LLC
By:________________________________
Name:
Title:
NETWORKING VENTURES, LLC
By:________________________________
Name:
Title:
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CUSIP No. 296744 10 5 13D Page 73 of 74
Exhibit A
Purchasers
Name and Address
GEF Optical Investment Company, LLC
1225 Eye Street, N.W., Suite 900
Washington, DC 20005
Networking Ventures, L.L.C.
8970 Route 108
Suite B
Columbia, MD 21045
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CUSIP No. 296744 10 5 13D Page 74 of 74
EXHIBIT 6
JOINT ACQUISITION STATEMENT
PURSUANT TO RULE 13D-1(k)
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D, is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D, shall be filed on
behalf of each of the undersigned without the necessity of filing additional
joint acquisition statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him/her or it contained therein, but
shall not be responsible for the completeness and accuracy of the information
concerning the others, except to the extent that he or it knows or has reason to
believe that such information is inaccurate.
DATED: September 15, 2000
GEF OPTICAL INVESTMENT COMPANY, LLC NETWORKING VENTURES, LLC
By: /s/ H. Jeffrey Leonard By: /s/ John G. Hannon
----------------------------- ------------------------
H. Jeffrey Leonard, President John G. Hannon, Partner
H. JEFFREY LEONARD MARIE S. MINTON
/s/ H. Jeffrey Leonard /s/ Marie S. Minton
----------------------------- ------------------------
JAMES P. GREGORY JOHN G. HANNON
/s/ James P. Gregory /s/ John G. Hannon
--------------------------- ------------------------
CAROLINE S. PISANO
/s/Caroline S. Pisano
---------------------------
