EXHIBIT 7
CUSIP No. 296744 10 5 13D/A Page 24 of 42
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "AGREEMENT"), dated as of December
14, 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 Buyers wish to purchase, upon the terms and conditions
stated in this Agreement, an aggregate of 160,000 shares of Common Stock, no par
value (the "SHARES"), in the respective amounts set forth opposite each Buyer's
name on the Schedule of Buyers.
C. 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 A (the "REGISTRATION RIGHTS
AGREEMENT") pursuant to which the Company has agreed to provide certain
piggyback registration rights under the 1933 Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.
NOW THEREFORE, the Company and the Buyers hereby agree as follows:
1. PURCHASE AND SALE OF SHARES.
(a) Purchase of Shares. At the 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 $2.50
per Share.
(b) The Closing. The closing of the transaction
contemplated hereby (the "Closing") is occurring at the offices of the Company.
At the 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 instructions to its transfer agent to complete and
deliver to each Buyer promptly after closing a stock certificate (collectively,
the "STOCK CERTIFICATES") representing the number of the Shares which such Buyer
is then purchasing hereunder, duly executed on behalf of the Company and
registered in the name of such Buyer or its designee.
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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 being purchased by it for its own account for investment only and not
with a view towards, or for resale in connection with, the public sale or
distribution thereof, except pursuant to sales registered or exempted under the
1933 Act; provided, however, that by making the representations herein, such
Buyer does not agree to hold any of the Shares for any minimum or other specific
term and reserves the right to dispose of the Shares at any time, provided
further, however, that such disposition shall be in accordance with or pursuant
to a registration statement or an exemption under the 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 Shares are being offered and sold to it in reliance on specific exemptions
from the registration requirements of the United States federal and state
securities laws and that the Company is relying in part upon the truth and
accuracy of, and such 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 Shares.
(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
Shares 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.
(e) Residency. Such Buyer is purchasing the Shares from
its office specified in its address on the Schedule of Buyers.
3. 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 4 and 5 of this Agreement.
(b) Form D and Blue Sky. The Company agrees to file a
Form D with respect to the Shares as required under Regulation D and to provide
a copy thereof to 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 Shares for sale to the Buyers pursuant
to this Agreement under applicable securities or "Blue Sky" laws of the
jurisdictions set forth in the Schedule of Buyers, and shall provide evidence of
any such action so taken to the Buyers.
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CUSIP No. 296744 10 5 13D/A Page 26 of 42
(c) Use of Proceeds. The Company will use the proceeds
from the sale of the Shares substantially for the repayment of its outstanding
debentures maturing November 30, 2000.
4. 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 Closing, 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 Closing, such Buyer shall have executed
this Agreement and the Registration Rights Agreement and delivered the
same to the Company.
(b) The representations and warranties of such Buyer
shall be true and correct in all material respects as of the Closing
and such Buyer shall have performed, satisfied and complied with the
covenants, agreements and conditions required to be performed,
satisfied or complied with by such Buyer at or prior to the Closing.
5. 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 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 this Agreement and
the Registration Rights Agreement and delivered the same to such Buyer.
(b) The Company shall cause its transfer agent to execute
for delivery to such Buyer the Stock Certificates (in such
denominations as such Buyer shall request) for the Shares being
purchased by such Buyer.
(c) The Board of Directors of the Company shall have
adopted resolutions in a form reasonably acceptable to such Buyer (the
"RESOLUTIONS").
(d) The Company shall have made all filings under all
applicable federal and state securities laws necessary to consummate
the issuance of the Shares pursuant to this Agreement in compliance
with such laws.
6. 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
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CUSIP No. 296744 10 5 13D/A Page 27 of 42
ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two
or more identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(c) Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
(e) Entire Agreement; Amendments. This Agreement
supersedes all other prior oral or written agreements between 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
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CUSIP No. 296744 10 5 13D/A Page 28 of 42
With a copy to:
D. Scott Freed
Whiteford, Taylor & Preston L.L.P.
7 Saint Paul Street
Baltimore, Maryland 21202-1626
Telephone: 410-347-8763
Facsimile: 410-752-7092
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.
(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
Buyers contained in Section 2 and the agreements and covenants set forth in
Sections 3, 4, and 5 shall survive the Closing. Each Buyer shall be responsible
only for its own representations, warranties, agreements and covenants
hereunder.
(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. The Company
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CUSIP No. 296744 10 5 13D/A Page 29 of 42
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.
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:
-----------------------------------
Name:
Title:
BUYERS:
GEF OPTICAL INVESTMENT COMPANY, LLC
By:
-----------------------------------
Name:
Title:
NETWORKING VENTURES, L.L.C.
By:
-----------------------------------
Name:
Title:
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CUSIP No. 296744 10 5 13D/A Page 30 of 42
SCHEDULE OF BUYERS
<TABLE>
<CAPTION>
INVESTOR ADDRESS AND Number of Shares
INVESTOR NAME FACSIMILE NUMBER
<S> <C> <C>
GEF Optical Investment Company LLC 1225 Eye Street, N.W, Suite 900 80,000
Washington, DC 20005
Networking Ventures, L.L.C. 9150 Guilford Rd. 80,000
Columbia, MD 21045
</TABLE>
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CUSIP No. 296744 10 5 13D/A Page 31 of 42
EXHIBITS
Exhibit A Form of Registration Rights Agreement
