Exhibit 10.1
CONVERSION, TENDER AND VOTING
AGREEMENT
THIS CONVERSION, TENDER AND VOTING
AGREEMENT (this “ Agreement ”), dated as of
January 20, 2007, is made and entered into by and among
QinetiQ North America Operations, LLC, a Delaware limited liability
company (“ Parent ”), Apollo Merger Sub Inc., a
Delaware corporation and a wholly owned subsidiary of Parent
(“ Merger Sub ”, and together with Parent, the
“ Buyer Parties ”), Analex Corporation, a
Delaware corporation (the “ Company ”), and the
persons listed on Schedule I hereto (collectively, the
“ Security Holders ”).
WHEREAS, simultaneously with the
execution and delivery of this Agreement, Parent, Merger Sub and
the Company have entered into an Agreement and Plan of Merger,
dated as of the date hereof (as it may be amended from time to
time, the “ Merger Agreement ”), pursuant to
which (a) Merger Sub will make a cash tender offer for all of
the outstanding shares of the Company’s common stock, par
value $0.02 per share (the “ Common Stock ”),
subject to the terms and conditions of the Merger Agreement (such
offer as it may be amended from time to time as permitted under the
Merger Agreement, the “ Offer ”), and
(b) Merger Sub will be merged with and into the Company (the
“ Merger ”);
WHEREAS, in connection with the
Offer and the Merger, and subject to the terms and conditions of
this Agreement, each Security Holder has irrevocably agreed to
(i) convert, effective as of the Expiration Date,
(A) each such Security Holder’s convertible secured
subordinated promissory notes issued by the Company on
December 9, 2003 (“ Series A Notes ” and
collectively with the Series A Preferred and Series B Preferred,
the “ Convertible Instruments ”) into shares of
Series A Preferred and (B) each such Security Holder’s
Series A Preferred and Series B Preferred (including any Series A
Preferred issued upon conversion of the Series A Notes) of the
Company into shares of Common Stock, (ii) tender such Common
Stock (including any Common Stock acquired upon conversion or
exercise, as applicable, of the Convertible Instruments) in
response to the Offer, and (iii) vote such Convertible
Instruments and/or Common Stock, as applicable, in favor of the
Merger and against any Acquisition Proposal;
WHEREAS, in connection with the
Offer and the Merger, and subject to the terms and conditions of
this Agreement, each Security Holder has agreed to convert for cash
each such Security Holder’s Series A Common Stock Warrants
(“ Series A Warrants ”) and Series B Common
Stock Warrants (“ Series B Warrants ”), as
described in Section 5.2(b)(ii) of the Company Disclosure
Schedule (collectively, the “Company
Warrants”);
WHEREAS, as an inducement to Buyer
Parties to enter into the Merger Agreement and incur the
obligations set forth therein, Buyer Parties require each Security
Holder to enter into this Agreement, and each Security Holder
desires to enter into this Agreement; and
WHEREAS, capitalized terms used
herein and not defined shall have the meanings specified in the
Merger Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I: CONVERSION OR EXERCISE
OF CONVERTIBLE INSTRUMENTS
Section 1.
(a) Conversion of Series A
Preferred Stock . Subject to Section 1(e), each Security
Holder that holds Series A Preferred hereby irrevocably elects,
consents and agrees (i) to convert each share of Series A
Preferred that it holds into shares of Common Stock pursuant to and
in accordance with Section 5(b)(ii) of the Certificate of
Designations, Powers, Preferences and Rights of the Series A
Convertible Preferred Stock (the “ Series A
Certificate ”), effective as of the Expiration Date,
provided , that on such Expiration Date Merger Sub
accepts for payment all Shares validly tendered and not withdrawn
pursuant to the Offer (together with the additional conversion of
Series A Preferred Stock contemplated by Section 1(c) below,
the “ Series A Conversion ”) and (ii) that,
pursuant to Section 4(d) of the Series A Certificate, the
transactions contemplated by the Merger Agreement (including the
Offer and the Merger) shall not be treated as a liquidation,
dissolution or winding up within the meaning of Section 4 of
the Series A Certificate. The number of shares of Common Stock
issuable upon the Series A Conversion to each holder of Series A
Preferred Stock on the date hereof is set forth next to each such
holder’s name on Schedule I hereto. In accordance with
Section 5(b)(ii) of the Series A Certificate, the Company
agrees to pay the holders of Series A Preferred the accrued and
unpaid dividends through the date of conversion, if any, on the
Series A Preferred in cash on the Expiration Date. The Company and
the holders of the Series A Preferred hereby agree that this
Agreement shall be deemed an effective Notice of Conversion (as
defined in the Series A Certificate) and the delivery of
Certificates (as defined below) representing the Series A Preferred
to the Company concurrently with the execution and delivery of this
Agreement shall be deemed to satisfy any and all obligations of the
holders thereof under Section 5(c) of the Series A Certificate
with respect to such conversion, and no further action on the part
of the holders thereof shall be required. Each of the Company and
the holders of the Series A Preferred hereby waive any and all
provisions of the Series A Certificate regarding the requirements
and mechanics of such conversion, including without limitation, the
holders’ of Series A Preferred right to receive notice and
the requirement of the Company to deliver certificates representing
the shares of Common Stock issuable upon conversion thereof, and
instead shall only be entitled to receive the Offer Price per share
of Common Stock. Each holder of Series A Preferred acknowledges and
agrees that the Company may, but is not required to, issue
certificates representing shares of Common Stock issuable upon the
Series A Conversion, and if the Company determines not to issue
such certificates, the certificates representing the Series A
Preferred shall represent shares of Common Stock after the
conversion for all purposes, including the Offer and the Merger.
Subject to Section 1(e) hereof, the Company shall determine
the exact time of day on the Expiration Date in which such
conversion shall be effective.
(b) Conversion of Series B
Preferred Stock . Subject to Section 1(e), each Security
Holder that holds Series B Preferred hereby irrevocably elects,
consents and agrees (i) to convert each share of Series B
Preferred that it holds into shares of Common Stock pursuant to and
in accordance with Section 5(b)(ii) of the Certificate of
Designations, Powers, Preferences and Rights of the Series B
Convertible Preferred Stock (the “ Series B
Certificate ”), effective as of the Expiration Date,
provided , that on such Expiration Date Merger Sub
accepts for payment all
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Shares validly tendered and not withdrawn
pursuant to the Offer (the “ Series B Conversion
” and together with the Series A Conversion, the “
Stock Conversion ”) and (ii) that, pursuant to
Section 4(d) of the Series B Certificate, the transactions
contemplated by the Merger Agreement (including the Offer and the
Merger) shall not be treated as a liquidation, dissolution or
winding up within the meaning of Section 4 of the Series B
Certificate. The number of shares of Common Stock issuable to each
such holder of Series B Preferred upon the conversion described in
the immediately preceding sentence is set forth next to each such
holder’s name on Schedule I hereto. In accordance with
Section 5(b)(ii) of the Series B Certificate, the Company
agrees to pay the holders of Series B Preferred the accrued and
unpaid dividends through the date of conversion, if any, on the
Series B Preferred in cash on the Expiration Date. The Company and
the holders of the Series B Preferred Stock hereby agree that this
Agreement shall be deemed an effective Notice of Conversion (as
defined in the Series B Certificate) and the delivery of
Certificates (as defined below) representing the Series B Preferred
to the Company concurrently with the execution and delivery of this
Agreement shall be deemed to satisfy any and all obligations of the
holders thereof under Section 5(c) of the Series B Certificate
with respect to such conversion, and no further action on the part
of the holders thereof shall be required. Each of the Company and
the holders of the Series B Preferred hereby waive any and all
provisions of the Series B Certificate regarding the requirements
and mechanics of such conversion, including without limitation, the
holders’ of Series B Preferred right to receive notice and
the requirement of the Company to deliver of certificates
representing the shares of Common Stock issuable upon conversion
thereof, and instead shall only be entitled to receive the Offer
Price per share of Common Stock. Each holder of Series B Preferred
acknowledges and agrees that the Company may, but is not required
to, issue certificates representing shares of Common Stock issuable
upon the Series B Conversion, and if the Company determines not to
issue such certificates, the certificates representing the Series B
Preferred shall represent shares of Common Stock after the
conversion for all purposes, including the Offer and the Merger.
Subject to Section 1(e) hereof, the Company shall determine
the exact time of day on the Expiration Date in which such
conversion shall be effective.
(c) Conversion of Series A
Notes . Subject to Section 1(e), each Security Holder that
holds a Series A Note hereby irrevocably elects, consents and
agrees to convert each Series A Note (including all accrued but
unpaid interest on such notes) that it holds into shares of Series
A Preferred pursuant to and in accordance with Section 1.3 of
the Series A Note, effective as of the Expiration Date (the “
Note Conversion ”). The Security Holder hereby agrees
that (i) the Company will be deemed to have offered to prepay
the applicable Series A Note pursuant to Section 1.3 of the
Series A Note, (ii) each Security Holder that holds a Series A
Note hereby elects to be prepaid by conversion pursuant to clause
(ii) of Section 1.3(a) of the Series A Note whereby each
such holder’s Series A Note will be converted into Series A
Preferred Stock in accordance with Section 1.3 of the Series A
Note, and (iii) each Security Holder that holds a Series A
Note hereby waives any and all provisions of the Series A Notes
regarding the requirements and mechanics of such conversion,
including without limitation, the right to receive notice, the
condition precedent that there shall be in effect a registration
statement filed with the Securities and Exchange Commission with
respect to the underlying shares, and the requirement of the
Company to deliver certificates representing the shares of Series A
Preferred issuable upon conversion thereof. In accordance with
Section 3 of each the Series A Note, the Company will pay to
each holder cash in lieu of fractional shares that such holder of
Series A Notes would otherwise be entitled to receive upon the Note
Conversion. Each holder of Series A Notes
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acknowledges and agrees that the Company may,
but is not required to, issue certificates representing shares of
Series A Preferred issuable upon the Note Conversion, and if the
Company determines not to issue such certificates, the certificates
representing the Series A Note shall represent shares of Series A
Preferred after the Note Conversion for all purposes. Each holder
of a Series A Note hereby irrevocably elects, consents and agrees
to contemporaneously convert the Series A Preferred it receives in
the Note Conversion in accordance with Section 1(a) above. The
Company and each holder of a Series A Note agrees that the
conversion of Series A Preferred shall be on the same terms and
conditions as set forth in Section 1(a) with the same force
and effect as if each holder of a Series A Note was a holder of
Series A Preferred share as of the date hereof. Subject to
Section 1(e) hereof, the Company shall determine the exact
time of day on the Expiration Date in which both such conversions
shall be effective. Effective immediately upon the receipt by each
Security Holder that holds a Series A Note of the Offer Price for
each share of Common Stock tendered pursuant to this Agreement, all
pledges, guarantees, security interests, liens and other
encumbrances related to the Series A Notes or arising out of any
agreement entered into in connection with the issuance of the
Series A Notes granted to each Security Holder that holds a Series
A Note shall automatically be deemed to be terminated and released.
Each Security Holder that holds a Series A Note will promptly
execute and deliver to the Company (or its legal counsel) any such
lien releases, mortgage releases, discharges of security interests
(including in respect of intellectual property), pledges and
guarantees and other similar discharge or release documents (and,
if applicable, in recordable form) as are necessary to release, as
of record, the security interests and all notices of security
interests and liens previously filed by each Security Holder that
holds a Series A Note with respect to the Series A Notes or any
agreement entered into in connection with the issuance of the
Series A Notes, provided , however , that such
releases shall be filed and become effective only
following the receipt by each Security Holder that holds a
Series A Note of the Offer Price for each share of Common Stock
tendered pursuant to this Agreement. Upon the receipt by each
Security Holder that holds a Series A Note of the Offer Price for
each share tendered pursuant to this Agreement, (1) each
Security Holder that holds a Series A Note hereby authorizes the
Company (or its legal counsel) to prepare and file all such UCC and
other termination statements and related filings as may be
necessary to effectuate the provisions of this Section 1(c),
(2) each Security Holder that holds a Series A Note shall
deliver to the Company (or its legal counsel) all instruments
evidencing pledged debt, and (3) to the extent recordation of
any applicable discharge or release document cannot be done by the
Company (or its legal counsel), each Security Holder that holds a
Series A Note, if requested to do so in writing by the Company,
will promptly record such discharge or release
document in the appropriate jurisdiction.
(d) Conversion of Company
Warrants . Subject to Section 1(e) hereof, each Security
Holder shall convert for cash all of such Security Holder’s
Company Warrants, and shall be entitled to receive cash payments
with respect to such Company Warrants from the Company as of the
Effective Time, on the terms and conditions set forth in
Section 4.4(e) of the Merger Agreement (the “ Warrant
Conversion ”), provided however , that if
the exercise price per share of any such Company Warrant is equal
to or greater than the Offer Price (as defined in the Merger
Agreement), such Company Warrant shall be canceled without any cash
payment being made in respect thereof. Each of the Company and the
holders of the Company Warrants hereby waive any and all provisions
of the Company Warrants regarding the requirements and mechanics of
the exercise of such warrants, including without limitation, the
holders’ of Company Warrants
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right to receive notice and the requirement of
the Company to deliver certificates representing the shares of
Common Stock issuable upon exercise thereof, and instead shall only
be entitled to receive the consideration with respect to such
Company Warrants as set forth in Section 4.4(e) of the Merger
Agreement.
(e) Stock Conversion, Note
Conversion and Warrant Conversion . In addition to being
subject to the other terms and conditions set forth in this
Agreement, the Stock Conversion, Note Conversion and Warrant
Conversion shall each be subject to the satisfaction or waiver of
each of the conditions to the Offer set forth on Annex A to
the Merger Agreement, other than the Minimum Condition, which shall
not operate as a condition or otherwise apply to the Stock
Conversion, Note Conversion or Warrant Conversion but which shall
be otherwise satisfied in accordance with the terms of this
Agreement.
ARTICLE II: TENDER OF COMMON
STOCK
Section 2.
(a) Each Security Holder hereby
irrevocably instructs the Company to tender, on its behalf, the
Common Stock beneficially owned by such holder into the Offer
immediately upon the conversions contemplated in Article I and not
to withdraw, or cause to be withdrawn, from the Offer such Common
Stock at any time, except in accordance with the Merger Agreement.
Each Security Holder shall not tender (or agree to tender) the
Common Stock or any Convertible Instrument into any exchange or
tender offer commenced by a third party other than Parent or Merger
Sub in accordance with the Merger Agreement.
(b) Subject to each Security
Holder’s written consent to the content of the disclosure,
which consent shall not be unreasonably withheld, each Security
Holder hereby severally agrees to permit the Company and the Buyer
Parties to publish and disclose in the Offer Documents (and any
other press release or announcement that may be issued in
accordance with the terms of the Merger Agreement) and, if approval
of the stockholders of the Company is sought or given under
applicable law, the Proxy Statement (including all documents and
schedules filed with the SEC), such Security Holder’s
identity and intent with respect to the Convertible Instruments and
the Common Stock and the nature of such Security Holder’s
commitments, arrangements, and understandings under this
Agreement.
(c) Each Security Holder hereby
irrevocably constitutes and appoints the Company as its true and
lawful agent and attorney-in-fact with the full power and authority
to act on behalf of the Security Holder with respect to the matters
set forth in Sections 2(c)(i) and 2(c)(ii) hereof. In
furtherance thereof, each Security Holder shall, on the date
hereof, deliver to the Company all certificates and notes, as
applicable, in proper deliverable form (in accordance with
Section 5(c) of the Series A Certificate, or 5(c) of the
Series B Certificate, as applicable), representing all of such
Security Holder’s Convertible Instruments (the “
Certificates ”). The Certificates representing the
Convertible Instruments are to be held by the Company as custodian
for the account of the undersigned and are to be converted,
exercised, tendered and voted by the Company in accordance with
this Agreement. Each Security Holder agrees to deliver to the
Company such additional documentation as the Company or its counsel
may reasonably request
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to effectuate or confirm compliance with any of
the provisions hereof, to be in form and substance reasonably
satisfactory in all respects to the Company. The Company is hereby
authorized and directed to:
(i) hold the Certificates deposited
with the Company hereunder in its custody, and
(ii) on the Expiration Date (
provided , that on such Expiration Date Merger Sub
accepts for payment all Shares validly tendered and not withdrawn
pursuant to the Offer) take all necessary action to (A) effect
the Note and Stock Conversion pursuant to Article I hereof,
(B) tender and not withdraw, or cause to be withdrawn from the
Offer at any time (except in accordance with the Merger Agreement),
all of the Security Holder’s Common Stock in response to the
Offer pursuant to this Article II (including the execution and
delivery on behalf of such holder any letters of transmittal or
similar documents necessary to confirm or effect the surrender of
such holder’s Common Stock in accordance with the terms of
the Offer), and (C) vote such Security Holder’s
Convertible Instruments and/or Common Stock pursuant to Article III
hereof.
(d) The custody arrangement set
forth in Section 2(c) and the Company’s authority
hereunder are irrevocable and are not subject to termination
(except as set forth in Article VIII) by the Security Holder or by
operation of law, whether by the dissolution or liquidation of any
Security Holder or the occurrence of any other event.
ARTICLE III: VOTING OF PREFERRED
AND COMMON STOCK
Section 3.
(a) At ever
