Exhibit 99.6
ANALEX CORPORATION
STOCKHOLDERS' VOTING AGREEMENT
This STOCKHOLDERS' VOTING AGREEMENT (this "Agreement"), dated
as of July 18, 2003, and effective at the time described in Section 3.8, is
among (a) ANALEX CORPORATION, a Delaware corporation (the "Company"), (b) the
shareholders of the Company listed on signature pages hereto under the heading
"Principal Shareholders" (each a "Principal Shareholder" and, collectively, the
"Principal Shareholders"), (c) PEQUOT PRIVATE EQUITY FUND III, L.P. and PEQUOT
OFFSHORE PRIVATE EQUITY PARTNERS III, L.P. (each a "Pequot Shareholder" and,
collectively, the "Pequot Shareholders") and (d) each other Person who becomes a
party to this Agreement, subject to the conditions set forth herein, by
executing an Instrument of Accession ("Instrument of Accession") in the form of
Schedule I hereto.
WHEREAS, the Pequot Shareholders and the Principal
Shareholders wish to set forth their relative rights with regard to the election
of the Board of Directors from and after the Series A Closing;
NOW, THEREFORE, the parties to this Agreement hereby agree as
follows:
(SS) 1. DEFINITIONS. For all purposes of this Agreement,
including the Recitals, except as otherwise defined herein, the following terms
shall have the meanings set forth below:
Board of Directors. Board of Directors shall mean the board of
directors of the Company.
Certificate of Designation. Certificate of Designation means
the Certificate of Powers, Designations, Preferences and Rights of the Series A
Preferred Stock in substantially the form attached as an exhibit to the Purchase
Agreement.
Common Stock. Common Stock shall mean (a) the Company's Common
Stock, $.02 par value per share (the "Common Stock") and (b) any shares of any
other class of capital stock of the Company hereafter issued which are (i) not
preferred as to dividends or assets over any class of stock of the Company, (ii)
not subject to redemption pursuant to the terms thereof or (iii) issued to the
holders of shares of Common Stock upon any reclassification thereof.
Forced Conversion. Forced Conversion shall mean the conversion
of the Series A Preferred Stock pursuant to Section 5(b)(i) or (ii) of the
Certificate of Designation.
Instrument of Accession. Instrument of Accession shall have
the meaning ascribed to it in the preamble to this Agreement.
Other Securities. Other Securities shall mean (a) all of the
shares of the Company's capital stock purchased by or issued from time to time
to any of the Principal Shareholders other than the Pequot Securities, (b) all
shares of the Company's capital stock issued or issuable upon conversion of such
shares and (c) all shares of the Company's capital stock issued with respect to
such shares by way of stock dividend or stock split or in connection with any
merger,
consolidation, recapitalization or other reorganization affecting the Company's
capital stock. Other Securities will continue to be Other Securities in the
hands of any holder and each transferee thereof will succeed to the rights and
obligations of a holder of Other Securities hereunder; provided that shares of
Other Securities will cease to be Other Securities when transferred (i) to the
Company, (ii) to any Pequot Shareholders or (iii) pursuant to a Public Sale.
Pequot Majority in Interest. Pequot Majority in Interest shall
mean the Pequot Shareholders holding at least a majority of the shares of Common
Stock issued or issuable, directly or indirectly, upon the conversion or
exercise of the Pequot Securities.
Pequot Notes. Pequot Notes shall mean the secured subordinated
convertible notes of the Company issued to the Pequot Shareholders pursuant to
the Purchase Agreement as in effect on the date hereof and any notes issued upon
transfer, exchange or replacement thereof.
Pequot Securities. Pequot Securities shall mean (a) the Pequot
Warrants, (b) the Pequot Notes, (c) the Pequot Shares, (d) all other debt of or
equity interests in the Company owned from time to time by any Pequot
Shareholder, (e) all shares of the Company's capital stock issued or issuable
upon conversion or exercise of any security described in (a), (b), (c) or (d)
and (f) all shares of the Company's capital stock issued with respect to any
such securities by way of stock dividend or stock split or in connection with
any merger, consolidation, recapitalization or other reorganization affecting
the Company's capital stock. Pequot Securities will continue to be Pequot
Securities in the hands of any holder (including, without limitation) a
Principal Shareholder and each transferee thereof will succeed to the rights and
obligations of a holder of Pequot Securities hereunder; provided that shares of
Pequot Securities will cease to be Pequot Securities when transferred (i) to the
Company or (ii) pursuant to a Public Sale.
Pequot Shares. Pequot Shares shall mean all shares of Series A
Preferred Stock issued to the Pequot Shareholders and issued or issuable on
conversion of the Pequot Notes.
Pequot Shareholders. Pequot Shareholders shall mean Pequot
Private Equity Fund III, L.P. and Pequot Offshore Private Equity Partners III,
L.P. for so long as such Persons hold Pequot Securities and any other Person to
whom Pequot Securities are transferred for so long as such Person holds any
Pequot Securities; provided, however, that any such transferee shall be a Pequot
Shareholder only in connection with the Pequot Securities held by such Person.
Pequot Warrants. Pequot Warrants shall mean the warrants of
the Company for the purchase of shares of Common Stock issued to Pequot pursuant
to the Purchase Agreement and any warrants issued upon transfer, exchange or
replacement thereof.
Person. Person shall mean an individual, partnership,
corporation, limited liability company, association, trust, joint venture,
unincorporated organization, or any government, governmental department or
agency or political subdivision thereof.
Principal Shareholder Majority in Interest. Principal
Shareholder Majority in Interest shall mean the Principal Shareholders holding
at least a majority of shares of the then outstanding Common Stock then held by
all of the Principal Shareholders.
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Public Offering. Public Offering shall mean a public offering
pursuant to an effective registration statement under the Securities Act
covering the offer and sale of shares of Common Stock.
Public Sale. Public Sale shall mean any sale of Common Stock
to the public pursuant to a Public Offering or to the public through a broker or
market-maker pursuant to the provisions of Rule 144 (or any successor rule)
adopted under the Securities Act.
Purchase Agreement. Purchase Agreement shall mean the
Subordinated Note and Series A Convertible Preferred Stock Purchase Agreement,
dated July 18, 2003, among the Company and the Pequot Shareholders.
Securities. Securities shall mean the Pequot Securities and
the Other Securities.
Securities Act. Securities Act shall mean the Securities Act
of 1933, as amended.
Series A Closing. Series A Closing shall mean the closing of
the purchase and sale of Series A Preferred Stock as contemplated by the
Purchase Agreement.
Series A Preferred Stock. Series A Preferred Stock shall mean
the Series A Convertible Preferred Stock, $.02 par value per share, of the
Company.
Shareholder(s). Shareholder shall mean each party hereto other
than the Company and Shareholders shall mean, collectively, the parties hereto
other than the Company.
Transfer. Transfer shall mean and include any sale,
assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift,
transfer by request, devise or descent, or other transfer or disposition of any
kind, including, but not limited to, transfers to receivers, levying creditors,
trustees or receivers in bankruptcy proceedings or general assignees for the
benefit of creditors, whether voluntary or by operation of law, directly or
indirectly, of any of the Securities.
(SS) 2. BOARD OF DIRECTORS.
2.1. Boards of Directors; Voting Agreements. (a) Subject
to paragraphs (b),(c) and (d) below, 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, or cause such Shareholder's
designees as directors to vote, all Securities owned by such Shareholder or over
which such Shareholder has voting control so as to fix the number of directors
of the Company at seven, unless and until additional members are designated by
the Pequot Shareholders in accordance with paragraphs (b) and (c) below, at
which time the number of directors of the Company shall be fixed at the minimum
number as may be necessary to permit the Pequot Shareholders to designate a
majority of such number, and to nominate and elect such directors of the Company
as follows:
(i) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., for so long as he remains an
employee of the Company and thereafter, the Person serving as the
Chief Executive Officer of the Company, and if no Person is serving as
the Chief Executive Officer, then the Person serving as the President
of the Company;
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(ii) Two directors designated by a Pequot Majority in Interest,
for so long as either (A) any of the Pequot Notes or shares
representing 50% or more of the shares of Series A Preferred Stock
originally issued at the Series A Closing are outstanding or (B) if
there has been a Forced Conversion of the Pequot Shares and none of
the Pequot Notes remain outstanding, for the remainder of the original
4-year term of the Pequot Notes so long as the Pequot Shareholders own
at least 20% of the issued and outstanding shares of Common Stock, who
shall initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, respectively;
provided, however, that (1) if the Pequot Notes are no longer
outstanding and less than 50% but more than 25% of the shares of the
Series A Preferred Stock originally issued at the Series A Closing are
outstanding or (2) if there has been a Forced Conversion and none of
the Pequot Notes remain outstanding and the Pequot Shareholders own
less than 20% but more than 5% of the issued and outstanding Common
Stock and the events in paragraphs (b) and (c) below shall have not
occurred, then the Pequot Shareholders will only be entitled to
designate one director; provided, further that each director
designated by a Pequot Majority in Interest shall be entitled to serve
as director for the remainder of such director's elected term;
(iii) so long as a Pequot Majority in Interest is entitled to
designate both directors pursuant to Section 2.1(a)(ii), three
non-employee directors designated by the Chief Executive Officer of
the Company (or if there is no, Chief Executive Officer, by the
President of the Company) and reasonably acceptable to a Pequot
Majority in Interest; and
(iv) so long as a Pequot Majority in Interest is entitled to
designate both directors pursuant to Section 2.1(a)(ii), one
independent director designated by a Pequot Majority in Interest and
reasonably acceptable to the Chief Executive Officer of the Company.
If, at any time, a Pequot Majority in Interest is only entitled to designate
only one of the directors described in Section 2.1(a)(ii), then (x) the three
directors designated pursuant to Section 2.1(a)(iii) all shall be designated by
the Chief Executive Officer of the Company (or if there is no Chief Executive
Officer, by the President of the Company) and shall be reasonably acceptable to
a Pequot Majority in Interest and a Principal Shareholder Majority in Interest
and (y) the directors that a Pequot Majority in Interest is no longer entitled
to designate pursuant to Sections 2.1(a)(ii) and (iv) shall be acceptable to a
majority in interest of the Shareholders.
(b) If the Company fails at any time, to redeem the Series A
Preferred Stock as required by and in accordance with the Section 11 of the
Certificate of Designation and such failure continues for a period of nine (9)
consecutive months, a Pequot Majority in Interest shall have the right, but not
the obligation, to designate additional members to the Board of Directors such
that the members of the Board of Directors designated by the Pequot Shareholders
shall constitute a majority of the members of the Board of Directors and the
Shareholders hereby agree to vote to elect and reelect such additional members
so designated by the Pequot Shareholders in accordance with and pursuant to the
terms of this Section 2.1, provided, that the right to designate such additional
members to the Board of Directors shall terminate at the time the Company has
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redeemed all of the shares of Series A Preferred Stock that it is obligated to
redeem at such time in accordance with the Section 11 of the Certificate of
Designation.
(c) If an Event of Default (as defined in the Purchase
Agreement) occurs under Section 6.1(a) of the Purchase Agreement and is
continuing for a period of twelve (12) consecutive months after notice of such
Event of Default by a Pequot Shareholder, a Pequot Majority in Interest shall
have the right, but not the obligation, to designate additional members to the
Board of Directors such that the members of the Board of Directors designated by
the Pequot Shareholders shall constitute a majority of the members of the Board
of Directors and the Shareholders hereby agree to vote to elect and reelect such
additional members so designated by the Pequot Shareholders in accordance with
and pursuant to the terms of this Section 2.1, provided, that the right to
designate such additional members to the Board of Directors shall terminate
effective upon the repayment of the principal and interest accrued under the
Pequot Notes in accordance with the terms thereof or a cure of the Event of
Default in accordance with the terms of Section 6.1 of the Purchase Agreement.
(d) If any vacancy shall occur in the Board of Directors of
the Company as a result of death, disability, resignation or any other
termination of a director, the replacement for such vacating director shall be
designated by the Person or Persons who, pursuant to paragraph (a), (b) or (c)
above, originally designated such vacating director. Each Person entitled to
designate a director or a replacement for a director pursuant to this Section 2
shall also be entitled to designate the removal of such director with or without
cause.
(e) The Pequot Shareholders hereby agree that one of the three
directors designated pursuant to Sections 2.1(a)(ii) and (iv) above shall be the
"financial expert" required on the audit committee of the Company by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended.
(f) To the greatest extent permitted by applicable law and the
rules and regulations of the American Stock Exchange, at least one of the
directors designated by the Pequot Shareholders pursuant to Section 2.1(a)(ii)
above shall be a member of any committee formed by the Board of Directors
including, without limitation, the compensation committee and the audit
committee.
2.2. PROXY. EACH SHAREHOLDER HEREBY GRANTS TO THE COMPANY AN
IRREVOCABLE PROXY, COUPLED WITH AN INTEREST, TO VOTE ALL OF THE VOTING
SECURITIES OWNED BY SUCH SHAREHOLDER OR OVER WHICH SUCH SHAREHOLDER HAS VOTING
CONTROL TO THE EXTENT NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION 2,
BUT ONLY IN THE EVENT OF AND TO THE EXTENT NECESSARY TO REMEDY ANY BREACH BY
SUCH SHAREHOLDER OF HIS, HER OR ITS OBLIGATIONS UNDER THE VOTING AGREEMENT
CONTAINED HEREIN.
2.3. Action by Shareholders; Voting Agreement. Each
Shareholder further agrees that such Shareholder will not vote any Securities
owned by such Shareholder or over which such Shareholder has voting control, or
take any action by written consent, or take any other action as a stockholder of
the Company, to circumvent the voting arrangements required by this Section 2.
Each Shareholder hereby agrees to vote or cause to be voted or cause such
Shareholder's designees
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as directors to vote all Securities owned by such Shareholder or over which such
Shareholder has voting control so as to comply with this Section 2. The
provisions set forth herein constitute a voting agreement under Section 218(c)
of the Delaware General Corporation Law, as amended, and, in connection
therewith, the Shareholders expressly consent to the enforcement of this Section
2 by specific performance.
(SS) 3. MISCELLANEOUS.3.1.
3.1 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction to the greatest extent
possible to carry out the intentions of the parties hereto.
3.2. Entire Agreement; No Third Party Beneficiaries. Each
party hereby acknowledges that no other party or any other person or entity has
made any promises, warranties, understandings or representations whatsoever,
express or implied, not contained in this Agreement and acknowledges that it has
not executed this Agreement in reliance upon any such promises, representations,
understandings or warranties not contained herein and that this Agreement
supersedes all prior agreements and understandings between the parties with
respect hereto. There are no promises, covenants or undertakings other than
those expressly set forth or provided for in this Agreement. This Agreement is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder.
3.3. Successors and Assigns. This Agreement will bind and
inure to the benefit of and be enforceable by the Company and the Shareholders
and their respective heirs, successors and assigns.
3.4. Counterparts; Facsimile Signatures. This Agreement may be
executed in separate counterparts each of which will be an original and all of
which taken together will constitute one and the same agreement. Any signature
page delivered by a fax machine shall be binding to the same extent as an
original signature page, with regard to any agreement subject to the terms
hereof or any amendment thereto.
3.5. Remedies. The Shareholders will be entitled to enforce
their rights under this Agreement 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 existing in their favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any Shareholder may
in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement. In the
event of any dispute involving the terms of this Agreement, the prevailing party
shall be entitled to collect reasonable fees and expenses incurred by the
prevailing party in connection with such dispute from the other parties to such
dispute.
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3.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing. Notices shall be delivered personally
via recognized overnight courier (such as Federal Express, DHL or Airborne
Express) or via certified or registered mail. Notices may be delivered via
facsimile or e-mail, provided that by no later than two days thereafter such
notice is confirmed in writing and sent via one of the methods described in the
previous sentence. Notices to a Pequot Shareholder shall be sent as provided in
connection with notices to the Purchasers in the Purchase Agreement. Notices to
the Company shall be sent as provided in the Purchase Agreement. Notices to a
Principal Shareholder shall be sent to such address as set forth on the books
and records of the Company, or at such other address or facsimile number as such
Principal Shareholder shall have furnished in writing to the other parties
hereto. All notices shall be effective upon receipt.
3.7. Amendment and Waiver. No modification, amendment or
waiver of any provision of this Agreement will be effective against the Company
or the Shareholders unless such modification, amendment or waiver is approved in
writing by the Company, a Pequot Majority in Interest and a Principal
Shareholder Majority in Interest. Any modification, amendment or waiver signed
by the Company, a Pequot Majority and a Principal Shareholder Majority shall
bind all of the parties hereto. No delay or omission to exercise any right,
power or remedy accruing to any party under this Agreement, upon any breach or
default of any other party under this Agreement, shall impair any such right,
power or remedy of such nonbreaching or nondefaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
3.8. Effective Time; Termination. (a) (a) This Agreement shall
become effective as of the date and time of the Series A Closing.
Notwithstanding the foregoing, if the Series A Closing does not occur prior to
the date that either the Company or Pequot validly terminates the transactions
contemplated by the Purchase Agreement, then (i) any Stockholder may withdraw
from this Agreement by delivering a notice of such withdrawal in writing to the
Company and the other Stockholders, and the terms of this Agreement shall
thereafter not be binding upon such Stockholder and (ii) the Company may
terminate this Agreement upon written notice to the Stockholders. The Company
hereby agrees to promptly notify the Stockholders if the Company or Pequot
validly terminates the Purchase Agreement.
(b) Notwithstanding any other provision of this Agreement,
this Agreement may be terminated in a writing approved by the Company and a
Pequot Majority in Interest. This Agreement will terminate automatically upon
the earliest to occur of (a) the completion of any voluntary or involuntary
liquidation or dissolution of the Company, (b) the sale of all or substantially
all of the Company's assets or of a majority of the outstanding equity of the
Company (determined on a fully diluted basis) to any Person that is not a party
to this Agreement (whether pursuant to a merger, consolidation or otherwise) or
(c) on the date that the Pequot Stockholders are no longer entitled to designate
any directors pursuant to Section 2.1(a)(ii).
3.9. GOVERNING LAW. THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
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3.10. Future Shareholders' Rights; Transfers; Legend. The
Company shall not issue (except in a Public Offering) any Common Stock or
securities convertible into or exercisable for Common Stock unless the Person
receiving such Common Stock executes an Instrument of Accession. No Shareholder
shall Transfer any Securities other than to the Company or pursuant to a Public
Sale unless the Person receiving Transfer of such Securities executes an
Instrument of Accession. Certificates representing the Securities shall be
endorsed with the following legend:
THE SECURITIES REPRESENTED HEREBY MAY BE SUBJECT TO THE TERMS
AND CONDITIONS OF A VOTING AGREEMENT WHICH MAY PLACE CERTAIN
RESTRICTIONS ON THE VOTING OF AND THE TRANSFER OF THE
SECURITIES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY
INTEREST IN SUCH SECURITIES SHALL BE DEEMED TO AGREE TO AND
SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A
COPY OF SUCH AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER
OF THIS SECURITY WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders' Voting Agreement on the day and year first above written.
ANALEX CORPORATION
By:
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
PEQUOT PRIVATE EQUITY FUND III, L.P.
By: Pequot Capital Management, Inc.,
Its Investment Manager
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
PEQUOT OFFSHORE PRIVATE EQUITY PARTNERS III, L.P.
By: Pequot Capital Management, Inc.,
Its Investment Manager
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
Signature Page to Stockholders' Voting Agreement
PRINCIPAL SHAREHOLDERS:
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By:
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J. ▇▇▇▇▇▇▇ ▇▇▇▇
By:
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▇. ▇. ▇▇▇▇▇▇▇
By:
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
By:
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Lese ▇▇▇ ▇▇▇▇▇▇
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:
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▇▇▇ ▇▇▇▇▇
Signature Page to Stockholders' Voting Agreement
PRINCIPAL SHAREHOLDERS CONTINUED:
--------------------------------
By:
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Name:
Title (if applicable):
Entity (if applicable):
Signature Page to Stockholders' Voting Agreement
Schedule I
Form of Instrument of Accession
Instrument of Accession
Reference is made to that certain Stockholders' Voting
Agreement dated as of July 18, 2003, a copy of which is attached hereto (as
amended and in effect from time to time, the "Stockholders Agreement"), among
Analex Corporation (the "Company"), and the Shareholders (as defined therein).
The undersigned, ____________________________, in order to
become the owner or holder of [identify Securities being Transferred] (the
"Securities") of the Company hereby agrees that by his execution hereof the
undersigned is a Shareholder party to the Stockholders Agreement subject to all
of the restrictions and conditions applicable to Shareholders set forth in such
Stockholders' Agreement, and all of the Securities purchased by the undersigned
in connection herewith (and any and all debt and equity of the Company issued in
respect thereof) are subject to all the restrictions and conditions applicable
to such Securities as set forth in the Stockholders Agreement. This Instrument
of Accession shall take effect and shall become a part of said Stockholders
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
State of Delaware.
Signature:
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Address:
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Date:
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Accepted:
ANALEX CORPORATION
By:
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Name:
Title:
Date:
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