Exhibit 99.7
ANALEX CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
, 2003 is by and among ANALEX CORPORATION, a Delaware corporation
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(the "Company") and each of the stockholders of the Company listed on Schedule I
hereto (the "Pequot Stockholders").
Preliminary Statement
The Company and the Pequot Stockholders are entering into a Subordinated
Note and Series A Convertible Preferred Stock Purchase Agreement, dated July 18,
2003 and as amended from time to time (the "Note Purchase Agreement"), providing
for the purchase by the Pequot Stockholders of (i) secured subordinated
convertible promissory notes (the "Notes") which are convertible into shares of
Series A Preferred Stock (as defined below), (ii) warrants to purchase shares of
Common Stock (as defined below) of the Company (the "Warrants") and (iii) shares
of Series A Preferred Stock (the "Shares"), in each case, subject to the terms
and provisions of the Note Purchase Agreement;
Simultaneously with, and as a condition to, the closing of the transactions
contemplated in the Note Purchase Agreement, the Company and the Pequot
Stockholders desire to enter into this Agreement to provide certain registration
and other rights with respect to the Company's common stock, $.02 par value per
share ("Common Stock") and its Series A convertible preferred stock, $.02 par
value per share ("Series A Preferred Stock") held by or issuable to the Pequot
Stockholders; and
Except for those piggyback registration rights set forth in that certain
Agreement and Plan of Merger dated as of the 31st day of October, 2001, by and
among the Company, Analex Corporation, a Nevada corporation, each of the selling
equity holders named therein and the Analex Corporation Employee Stock Ownership
Plan and Trust (the "Existing Registration Rights Agreement"), no other
registration rights, other than those set forth herein with respect to the
Pequot Stockholders, have been granted by the Company to its stockholders and
are in existence as of the date hereof.
Terms and Conditions
In consideration of the mutual covenants and agreements contained in this
Agreement and the Note Purchase Agreement, and intending to be legally bound,
the parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms have
the meanings indicated below or in the referenced sections of this Agreement:
"AMEX." The American Stock Exchange.
"Common Stock." As defined in the Preliminary Statement hereof.
"Exchange Act." The Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
"Note Purchase Agreement." As defined in the Preliminary Statement hereof.
"Notes." As defined in the Preliminary Statement hereof.
"Person." An individual, a partnership, a corporation, a limited liability
company or partnership, an association, a joint stock company, a trust, a
business trust, a joint venture, an unincorporated organization or a government
entity or any department, agency, or political subdivision thereof.
"Pequot Stockholders." As defined in the Preliminary Statement hereof, and
their successors, assigns and transferees.
"Piggyback Registration." As defined in Section 4(a) hereof.
"Registrable Securities." Any Common Stock issued or issuable upon
conversion or exercise of the Shares, Notes and Warrants or deriving therefrom,
and all other shares of Common Stock of the Company or any successor owned from
time to time by the Pequot Stockholders; provided, that a Registrable Security
ceases to be a Registrable Security when (i) it is registered under the
Securities Act and disposed of in accordance with the registration statement
covering it or (ii) it is sold or transferred in accordance with the
requirements of Rule 144 (or similar provisions then in effect) promulgated by
the SEC under the Securities Act ("Rule 144").
"Registration Expenses." As defined in Section 7(a) hereof.
"Registration Statement." Registration Statement shall mean the
registration statement contemplated by Section 3 and any additional registration
statements contemplated by Section 4, including (in each case) the prospectus,
amendments and supplements to such registration statement or prospectus, all
exhibits attached thereto, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
"SEC." The United States Securities and Exchange Commission.
"Securities Act." The Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"Series A Preferred Stock." As defined in the Preliminary Statement hereof.
"Shares." As defined in the Preliminary Statement hereof.
"Warrants." As defined in the Preliminary Statement hereof.
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Section 2. Securities Subject to this Agreement.
(a) Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever that Person owns, directly or beneficially, or
has the right to acquire, Registrable Securities, disregarding any legal
restrictions upon the exercise of that right.
(b) Majority of Registrable Securities. As used in this Agreement, the term
"majority of the Registrable Securities" means more than 50% of the Registrable
Securities being registered unless the context indicates that it is more than
50% of the Registrable Securities then issued and outstanding.
Section 3. Registration on Form S-3. (a) Subject to receipt of necessary
information from the Pequot Stockholders, the Company will, as soon as practical
but in no event later than 30 days following the date hereof, prepare and file
with the SEC a Registration Statement on Form S-3 to permit a public offering
and resale of the Registrable Securities under the Securities Act on a
continuous basis under Rule 415. The Company acknowledges that the plan of
distribution contemplated by such Registration Statement shall include offers
and sales through underwriters or agents, offers and sales directly to
investors, block trades and such other methods of offer and sale as the Pequot
Stockholders shall request. The Company will use its reasonable best efforts to
cause the Registration Statement to be declared effective by the SEC within 90
days following the date hereof. The Company will cause such Registration
Statement to remain effective until such time as all of the shares of Common
Stock designated thereunder are sold or the holders thereof are entitled to rely
on Rule 144(k) for sales of Registrable Securities without registration under
the Securities Act and without compliance with the public information, sales
volume, manner of sale or notice requirements of Rule 144(c), (e), (f) or (h).
The Company will pay all Registration Expenses of each registration of
Registrable Securities pursuant to this Section 3. The number of shares of
Common Stock designated in the Registration Statement shall be equal to the sum
of the number of shares of Common Stock issuable upon (a) the conversion of the
Notes and the Series A Preferred Stock (including Series A Preferred Stock
issued on conversion of the Notes) and (b) the exercise of the Warrants held by
or issuable to the Pequot Stockholders. The Company acknowledges that at the
time the Company files the Registration Statement pursuant to this Section 3 the
number of Registrable Securities will not be fixed due to the antidilution and
other provisions related to the Notes, Shares and Warrants ("Adjustment
Provisions"). Accordingly, the Company agrees that it will register the number
of shares of Common Stock issuable on conversion of the Notes and the Series A
Preferred Stock (including Series A Preferred Stock issuable on conversion of
the Notes) and on the exercise of the Warrants held by or issuable to the Pequot
Stockholders as of the date hereof. The Company agrees that, thereafter, it will
file, within a reasonable period of time after all of the Registrable Securities
are not covered by such Registration Statement (due to the effect of the
Adjustment Provisions) such amendments and/or supplements to the Registration
Statement, and such additional Registration Statements as are necessary in order
to ensure that at least 100% of the number of shares of Common Stock issuable on
conversion of the Notes and the Series A Preferred Stock (including Series A
Preferred Stock issuable on conversion of the Notes) and on the exercise of the
Warrants held by or issuable to the Pequot Stockholders are included in a
Registration Statement.
(b) Selection of Underwriters. If any registration pursuant to this Section
3 is an underwritten offering, the Pequot Stockholders will select as the
investment banker(s) and manager(s) that will administer the offering a
nationally recognized investment banker(s) and
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manager(s) with demonstrable industry-specific expertise and experience and
reasonably acceptable to the Company.
Section 4. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities in an underwritten offering under the Securities Act, whether for
its own account or for the account of another stockholder (except for the
registration of securities to be offered pursuant to an employee benefit plan on
Form S-8, pursuant to a registration made on Form S-4 or any successor forms
then in effect) at any time other than pursuant to a registration in connection
with Section 3 above and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), it will
so notify in writing all holders of Registrable Securities no later than twenty
(20) days prior to the anticipated filing date. Subject to the provisions of
Section 4(c), the Company will include in the Piggyback Registration all
Registrable Securities, on a pro rata basis based upon the total number of
Registrable Securities with respect to which the Company has received written
requests for inclusion within ten (10) days after the issuance of the Company's
notice. Such Holder's notice shall state the intended method of disposition of
the Registrable Securities by such Holder. Such Registrable Securities may be
made subject to an underwriters' over-allotment option, if so requested by the
managing underwriter. The holders of Registrable Securities may withdraw all or
any part of the Registrable Securities from a Piggyback Registration at any time
before ten (10) business days prior to the effective date of the Piggyback
Registration. In any Piggyback Registration, the Company, the holders of
Registrable Securities and any Person who hereafter becomes entitled to register
its securities in a registration initiated by the Company must sell their
securities on the same terms and conditions. A registration of Registrable
Securities pursuant to this Section 4 shall be in addition to the registration
pursuant to Section 3.
(b) Piggyback Expenses. The Company shall pay to the holders of the
Registrable Securities included in a Piggyback Registration all Registration
Expenses of those holders.
(c) Underwriting; Priority on Piggyback Registrations. The right of any
such Holder to be included in an underwritten registration pursuant to this
Section 4 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. If the managing underwriter gives
the Company its written opinion that the total number or dollar amount of
securities requested to be included in the registration exceeds the number or
dollar amount of securities that can be sold, the Company will include the
securities in the registration in the following order of priority: (i) first,
all securities the Company proposes to sell; (ii) second, up to the full number
or dollar amount of Registrable Securities requested to be included in the
registration (allocated pro rata among the holders of Registrable Securities
requested to be included in the registration, on the basis of the dollar amount
or number of Registrable Securities requested to be included, as the case may
be); and (iii) third, any other securities (provided they are of the same class
as the securities sold by the Company) requested to be included, allocated among
the holders of such securities in such proportions as the Company and
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those holders may agree; provided, that at least fifteen percent (15%) of the
Registrable Securities requested to be included in such registration have been
included in the offering; provided, further, that the holders of Registrable
Securities shall not be subject to any cutback in the amount of Registrable
Securities requested to be included in the registration unless all other holders
of securities requesting to be included in such registration have been excluded
from such registration. In the event that the managing underwriter advises the
Company that an underwriters' over-allotment option is necessary or advisable,
the allocation provided for in this Section 4(c) shall apply to the
determination of which securities are to be included in the registration of such
shares.
(d) Selection of Underwriters. In any Piggyback Registration, the Company
will select as the investment banker(s) and manager(s) that will administer the
offering a nationally recognized investment banker(s) and manager(s) with
demonstrable industry-specific expertise and experience. The Company and the
holders of Registrable Securities whose shares are being registered shall enter
into a customary underwriting agreement with such investment banker(s) and
manager(s); provided, that the liability of any holder of Registrable Securities
shall be limited to such holder's net proceeds received from the sale of its
Registrable Securities in such offering and such limitation shall not be amended
by any underwriting agreement or arrangement.
(e) Right to Terminate Registration. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 4
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 7 hereof.
Section 5. "Lock-Up" Agreements.
If requested by the managing underwriter, each holder of Registrable
Securities agrees not to sell, transfer, make any short sale of, grant any
option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale with respect to (each, a "Disposition")
any Registrable Securities (or other securities) of the Company held by such
Holder (other than those included in the registration) for a 30 day period (or
such longer period requested by the managing underwriter which shall in no event
exceed 90 days) after the effective date of the first two registrations by the
Company pursuant to Section 4 after the date hereof unless the managing
underwriter(s) agrees otherwise; provided, however, that all officers and
directors of the Company, all holders of at least five percent (5%) of the
Company's equity securities purchased from the Company (other than securities
purchased from the Company at any time after the date of this Agreement in a
registered public offering) and all other persons with registration rights
(whether or not pursuant to this Agreement) are bound by and have entered into a
similar agreement and the restrictions on transfer have not been waived in whole
or in part with respect to any such officers, directors, holders or persons.
Section 6. Registration Procedures.
(a) Obligations of the Company. Whenever required to register any
Registrable Securities , the Company shall as expeditiously as practicable:
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(1) prepare and, as soon as practicable, but in any event within 30
days of the date hereof in the case of a registration pursuant to Section
3, file with the SEC a registration statement on the appropriate form and
use reasonable best efforts to cause the registration statement to become
effective. At least ten (10) days before filing a registration statement or
prospectus or at least three (3) business days before filing any amendments
or supplements thereto, the Company will furnish to the counsel of the
holders of a majority of the Registrable Securities being registered copies
of all documents proposed to be filed for that counsel's review and
approval, which approval shall not be unreasonably withheld or delayed;
(2) immediately notify each seller of Registrable Securities of any
stop order threatened or issued by the SEC and take all actions reasonably
required to prevent the entry of a stop order or if entered to have it
rescinded or otherwise removed;
(3) prepare and file with the SEC such amendments and supplements to
the registration statement and the corresponding prospectus necessary to
keep the registration statement effective, in the case of the registration
required by Section 3 hereof for the period provided in Section 3 and in
any other case for 90 days or such shorter period as may be required to
sell all Registrable Securities covered by the registration statement; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the registration statement during
each period in accordance with the sellers' intended methods of disposition
as set forth in the registration statement;
(4) furnish to each seller of Registrable Securities a sufficient
number of copies of the registration statement, each amendment and
supplement thereto (in each case including all exhibits), the corresponding
prospectus (including each preliminary prospectus), and such other
documents as a seller may reasonably request to facilitate the disposition
of the seller's Registrable Securities;
(5) use its best efforts to register or qualify the Registrable
Securities under securities or blue sky laws of jurisdictions in the United
States of America as any seller requests within twenty (20) days following
the original filing of a registration statement and do any and all other
reasonable acts and things that may be necessary or advisable to enable the
seller to consummate the disposition of the seller's Registrable Securities
in such jurisdiction; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation to do business under the laws
of any jurisdiction in which it is not then qualified or to file any
general consent to service of process;
(6) notify each seller of Registrable Securities, at any time when a
prospectus is required to be delivered under the Securities Act, of any
event as a result of which the prospectus or any document incorporated
therein by reference contains an untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein
not misleading in light of the circumstances under which such statements
were made, and use reasonable best efforts to prepare a supplement or
amendment to the prospectus or any such document incorporated therein so
that thereafter the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
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statements therein not misleading in light of the circumstances under which
such statements were made;
(7) cause all registered Registrable Securities to be listed on each
securities exchange, if any, on which similar securities issued by the
Company are then listed;
(8) provide an institutional transfer agent and registrar and a CUSIP
number for all Registrable Securities on or before the effective date of
the registration statement;
(9) enter into such customary agreements, including an underwriting
agreement in customary form (which underwriting agreement shall include a
"lock-up" agreement regarding offers or sales by the Company, in customary
form and with such duration as may be reasonably requested by the
underwriters), and take all other actions in connection with those
agreements as the holders of a majority of the Registrable Securities being
registered or the underwriters, if any, reasonably request to expedite or
facilitate the disposition of the Registrable Securities;
(10) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
the registration statement, and any attorney, accountant, or other agent of
any seller or underwriter, all financial and other records, pertinent
corporate documents, and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any seller, underwriter, attorney, accountant, or other agent
in connection with the registration statement; provided that an appropriate
confidentiality agreement is executed by any such seller, underwriter,
attorney, accountant or other agent;
(11) in connection with any underwritten offering, obtain a "comfort"
letter from the Company's independent public accountants in customary form
and covering those matters customarily covered by "comfort" letters as the
holders of a majority of the Registrable Securities being registered or the
managing underwriter reasonably requests (and, if the Company is able after
using its reasonable efforts, the letter shall be addressed to holders of
the Registrable Securities, the Company and the underwriters);
(12) in connection with any underwritten offering, furnish, at the
request of the holders of a majority of the Registrable Securities being
registered or underwriter(s) of the offering, an opinion of counsel
representing the Company for the purposes of the registration, in the form
and substance customarily given to underwriters in an underwritten public
offering and reasonably satisfactory to counsel representing the holders of
Registrable Securities being registered and the underwriter(s) of the
offering, addressed to the underwriters and to the holders of the
Registrable Securities being registered;
(13) use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement complying with the
provisions of Section 11(a) of the Securities Act and covering the period
of at least twelve (12) months, but not more than eighteen (18) months,
beginning with the first month after the effective date of the Registration
Statement;
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(14) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the AMEX; and
(15) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
(b) Seller Information. In the event of any registration by the Company,
from time to time, the Company may require each seller of Registrable Securities
subject to the registration to furnish to the Company information regarding such
seller, the Registrable Securities held by them, and the distribution of the
securities subject to the registration, and such seller shall furnish all such
information reasonably requested by the Company.
(c) Notice to Discontinue. Each holder of Registrable Securities agrees by
acquisition of such securities that, upon receipt of any notice from the Company
of any event of the kind described in Section 6(a)(6), the holder will
discontinue disposition of Registrable Securities until the holder receives
copies of the supplemented or amended prospectus contemplated by Section
6(a)(6). In addition, if the Company requests, the holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the holder's possession, of the prospectus covering the Registrable
Securities current at the time of receipt of the notice. If the Company gives
any such notice, the time period mentioned in Section 6(a)(3) shall be extended
by the number of days elapsing between the date of notice and the date that each
seller receives the copies of the supplemented or amended prospectus
contemplated in Section 6(a)(6).
(d) Notice by Holders. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, those holders shall notify the Company, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event concerning that holder of the Registrable Securities, as
a result of which the prospectus included in the registration statement contains
an untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section 7. Registration Expenses.
(a) Generally. All Registration Expenses incurred in connection with the
Company's performance of or compliance with this Agreement shall be paid as
provided in this Agreement. The term "Registration Expenses" includes without
limitation all registration filing fees, reasonable professional fees and other
reasonable expenses of the Company's compliance with federal, state and other
securities laws (including fees and disbursements of counsel for the
underwriters in connection with state or other securities law qualifications and
registrations), printing expenses, messenger, telephone and delivery expenses;
reasonable fees and disbursements of counsel for the Company and for one counsel
for the holders of Registrable Securities; reasonable fees and disbursement of
the independent certified public accountants selected by the Company (including
the expenses of any audit or "comfort" letters required by or incident to
performance of the obligations contemplated by this Agreement); fees and
expenses of the underwriters (excluding discounts and commissions); fees and
expenses of any special experts retained by the Company at the request of the
managing underwriters in connection with the registration; and applicable stock
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exchange and AMEX registration and filing fees. The term "Registration Expenses"
does not include the Company's internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the securities to be registered on
each securities exchange on which similar securities issued by the Company are
then listed, all of which shall be paid by the Company, nor does it include
underwriting fees or commissions or transfer taxes, all of which shall be paid
by each of the sellers of Registrable Securities with respect to the Registrable
Securities sold by such seller. For the avoidance of doubt, the parties hereto
acknowledge and agree that any and all fees and expenses of underwriters
retained in connection with a plan of distribution of the Registrable Securities
described in Section 3 are expressly excluded from the definition of
"Registration Expenses" above.
(b) Other Expenses. To the extent the Company is not required to pay
Registration Expenses, each holder of securities included in any registration
will pay those Registration Expenses allocable to the holder's securities so
included, and any Registration Expenses not allocable will be borne by all
sellers in proportion to the number of securities each registers.
Section 8. Indemnification.
(a) Indemnification by Company. In the event of any registration of
Registrable Securities under the Securities Act pursuant to this Agreement, to
the full extent permitted by law, the Company agrees to indemnify and hold
harmless each holder of Registrable Securities, its officers, directors,
trustees, partners, employees, advisors and agents, and each Person who controls
the holder (within the meaning of the Securities Act and the Exchange Act)
against any and all losses, claims, damages, liabilities and expenses arising
out of (i) any untrue or allegedly untrue statement of material fact contained
in any registration statement or any amendment thereof under which such
Registrable Securities were registered under the Securities Act, any prospectus
or preliminary prospectus contained therein or any amendment thereof or any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which such statements were made, except to the extent
the untrue statement or omission resulted from information that the holder
furnished in writing to the Company expressly for use therein, and (ii) any
failure to comply with any law, rule or regulation applicable to such
registration. Such indemnity shall remain in full force and effect, regardless
of any investigation made by such indemnified party, and shall survive the
transfer of such Registrable Securities by such holder. In connection with a
firm or best efforts underwritten offering, to the extent customarily required
by the managing underwriter, the Company will indemnify the underwriters, their
officers and directors and each Person who controls the underwriters (within the
meaning of the Securities Act and the Exchange Act), to the extent customary in
such agreements.
(b) Indemnification by Holders of Securities. In connection with any
registration statement, each participating holder of Registrable Securities will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any registration statement or
prospectus and each participating holder agrees, severally and not jointly, to
indemnify and hold harmless, to the extent permitted by law, the Company, its
directors, officers, trustees, partners, employees, advisors and agents, and
each Person who controls the Company (within the meaning of the Securities Act
and the Exchange Act) against any and all losses, claims,
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damages, liabilities and expenses arising out of any untrue or allegedly untrue
statement of a material fact or any omission or alleged omission to state a
material fact required to be stated in the registration statement or prospectus
or any amendment thereof or supplement thereto necessary to make the statements
therein not misleading in light of the circumstances under which such statements
were made, but only to the extent that the untrue statement or omission is
contained in or omitted from any information or affidavit the holder furnished
in writing to the Company expressly for use therein and only in an amount not
exceeding the net proceeds received by the holder with respect to securities
sold pursuant to such registration statement. Such indemnity shall remain in
full force and effect, regardless of any investigation made by the Company, and
shall survive the transfer of such Registrable Securities by such holder. In
connection with a firm or best efforts underwritten offering, to the extent
customarily required by the managing underwriter, each participating holder of
Registrable Securities will indemnify the underwriters, their officers and
directors and each Person who controls the underwriters (within the meaning of
the Securities Act and the Exchange Act), to the same extent as it has
indemnified the Company; provided, that the indemnity obligations of any holder
contained in such agreement shall be limited to the amount of such holder's net
proceeds received from the sale of its Registrable Securities in such offering.
(c) Indemnification Proceedings. Any Person entitled to indemnification
under this Agreement will (i) give prompt notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii) unless in the
indemnified party's reasonable judgment a conflict of interest may exist between
the indemnified and indemnifying parties with respect to the claim, permit the
indemnifying party to assume the defense of the claim with counsel reasonably
satisfactory to the indemnified party. If the indemnifying party does not assume
the defense, the indemnifying party will not be liable for any settlement made
without its consent (but that consent may not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or will enter into any
settlement that does not include as an unconditional term thereof the claimant's
or plaintiff's release of the indemnified party from all liability concerning
the claim or litigation or which includes any non-monetary settlement. An
indemnifying party who is not entitled to or elects not to assume the defense of
a claim will not be under an obligation to pay the fees and expenses of more
than one counsel for all parties indemnified by the indemnifying party with
respect to the claim, unless in the reasonable judgment of any indemnified party
a conflict of interest may exist between the indemnified party and any other
indemnified party with respect to the claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of no more than one
additional counsel for the indemnified parties.
(d) Contribution. If the indemnification provided for in Section 8(a) or
(b) is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each indemnifying
party thereunder shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnified party and the indemnifying party in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnified party and the indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnified party and the
indemnifying party and the parties' relative intent and knowledge.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant this Section 8(d) were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding anything herein to the contrary, no participating holder of
Registrable Securities acting as an indemnifying party shall be required to
contribute any amount in excess of the amount by which the net proceeds of the
offering (before deducting expenses, if any) received by such participating
holder exceeds the amount of any damages that such participating holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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.
The obligations of the Company and the holders of Registrable Securities
under this Section 8 shall survive the completion of any offering of Registrable
Securities in a registration statement, including the termination of this
Agreement.
Section 9. Rule 144. With a view to making available to the Holders the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish to
such Holder forthwith upon request; a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the Exchange Act (at any time after it has become subject to such
reporting requirements); a copy of the most recent annual or quarterly report of
the Company; and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
Section 10. Participation in Underwritten Registration. No Person may
participate in any underwritten registration without (a) agreeing to sell
securities on the basis provided in underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements (the holders of
Registrable Securities in a registration pursuant to Section 3 and the Company
in a piggyback registration pursuant to Section 4(d)), and (b) completing and
executing all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required by the underwriting arrangements.
Section 11. Termination. This Agreement shall terminate with respect to a
holder of Registrable Securities as of such time such holder is entitled to rely
on Rule 144(k) for sales of Registrable Securities without registration under
the Securities Act and without compliance with the
11
public information, sales volume, manner of sale or notice requirements of Rule
144 (c), (e), (f) or (h).
Section 12. Suspension of Registration Statement. The Company shall be
permitted to suspend the effectiveness of any Registration Statement hereunder
if (i) the Company provides at least 10 days' prior written notice to the Pequot
Stockholders of the Company's intention to make a public offering of its Common
Stock within 30 days of such notice, other than a Registration Statement filed
pursuant to Section 3 hereof or (ii) a merger, acquisition, business combination
or other similar transaction has been proposed and is being actively considered
by the Company and notice of the same is provided to the Pequot Stockholders.
Notwithstanding anything to the contrary in this Section 12, the Company shall
not be permitted to suspend the effectiveness of any Registration Statement
hereunder for more than 30 consecutive days at any one time or more than 60 days
in any 12-month period.
Section 13. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to (i) the
Registrable Securities, (ii) any and all shares of voting common stock of the
Company into which the Registrable Securities are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the Registrable Securities and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall use its best efforts to cause any successor or assign (whether by sale,
merger or otherwise) to enter into a new registration rights agreement with the
holders of Registrable Securities on terms substantially the same as this
Agreement as a condition of any such transaction.
(b) Amendment. This Agreement may be amended or modified only by a written
agreement executed by (i) the Company and (ii) the holders of at least a
majority in interest of the Registrable Securities. Any amendment or
modification signed by the Company and at least a majority in interest of the
holders of Registrable Securities shall bind all of the parties hereto.
(c) Attorneys' Fees. In any legal action or proceeding brought to enforce
any provision of this Agreement, the prevailing party shall be entitled to
recover all reasonable expenses, charges, court costs and attorneys' fees in
addition to any other available remedy at law or in equity.
(d) Benefit of Parties; Assignment. Subject to the terms and conditions of
the Note Purchase Agreement and this subsection (d), including, without
limitation, the transfer restrictions contained therein, all of the terms and
provisions of this Agreement shall be binding on and inure to the benefit of the
parties and their respective successors and assigns, including, without
limitation, all subsequent holders of securities entitled to the benefits of
this Agreement who agree in writing to become bound by the terms of this
Agreement. The rights to cause the Company to register Registrable Securities
under this Agreement may be transferred or assigned by such Holder only to: (i)
partners, members and affiliates of such Holder or (ii) a transferee or assignee
who acquires at least five percent (5%) of the Registrable Securities then
outstanding (or, if a smaller amount, the
12
number of Registrable Securities held by such Holder on an as-converted and
fully diluted basis), provided that the Company is given written notice promptly
following the time of such transfer or assignment, stating the name and address
of the transferee or assignee and identifying the securities with respect to
which such registration rights are being transferred or assigned, and, provided
further, that the transferee or assignee of such rights assumes in writing prior
to such transfer or assignment, the obligations of such Holder under this
Agreement.
(e) Captions. The captions of the sections and subsections of this
Agreement are solely for convenient reference and shall not be deemed to affect
the meaning or interpretation of any provision of this Agreement.
(f) Cooperation. The parties agree that after execution of this Agreement
they will from time to time, upon the request of any other party and without
further consideration, execute, acknowledge and deliver in proper form any
further instruments and take such other action as any other party may reasonably
require to carry out effectively the intent of this Agreement.
(g) Counterparts; Facsimile Execution. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
Facsimile execution and delivery of this Agreement shall be legal, valid and
binding execution and delivery for all purposes.
(h) Entire Agreement. 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 the Transaction
Documents (as defined in the Note Purchase Agreement) and acknowledges that it
has not executed this Agreement in reliance upon any such promises,
representations, understandings or warranties not contained herein or therein
and that the Transaction Documents supersede all prior agreements and
understandings between the parties with respect thereto. There are no promises,
covenants or undertakings other than those expressly set forth or provided for
in the Transaction Documents.
(i) Governing Law. The internal law of the State of Delaware will govern
the interpretation, construction, and enforcement of this Agreement and all
transactions and agreements contemplated hereby, notwithstanding any state's
choice of law rules to the contrary.
(j) No Inconsistent Agreements. The Company represents and warrants that
(i) it has not granted to any Person the right to request or require the Company
to register any securities issued by the Company other than the rights contained
herein and the rights set forth in the Existing Registration Rights Agreement
and (ii) this Agreement does not conflict with and is not inconsistent with the
rights set forth in the Existing Registration Rights Agreement. For so long as
at least 50% of the shares of Series A Preferred Stock acquired by the Pequot
Stockholders at the initial closing pursuant to the Note Purchase Agreement (the
"50% Threshold") remain outstanding, the Company shall not, except with the
prior written consent of at least a majority in interest of the Registrable
Securities held by the Pequot Stockholders, enter into any agreement with
respect to its securities that shall grant to any Person registration rights
that in any way conflict with or are prior to or equal in right to the rights
provided under this Agreement; provided, however, that in the event that an
Event of Default (as defined in the Note Purchase Agreement) has occurred and is
continuing or the Company has failed to redeem the Series A Preferred Stock in
accordance with Section 11 of the
13
Certificate of Designation for the Series A Preferred Stock, the 50% Threshold
shall not apply and the restriction contained in this paragraph (j) shall be
applicable for so long as this Agreement has not been terminated
(k) Notices. All notices, requests, demands, or other communications that
are required or may be given pursuant to the terms of this Agreement shall be in
writing and properly addressed to the addresses of the parties set forth in the
Note Purchase Agreement or to such other address(es) as the respective parties
hereto shall from time to time designate to the other(s) in writing. All notices
shall be effective upon receipt.
(l) Specific Performance. Each of the parties agrees that damages for a
breach of or default under this Agreement would be inadequate and that in
addition to all other remedies available at law or in equity that the parties
and their successors and assigns shall be entitled to specific performance or
injunctive relief, or both, in the event of a breach or a threatened breach of
this Agreement.
(m) Validity of Provisions. Should any part of this Agreement for any
reason be declared by any court of competent jurisdiction to be invalid, that
decision shall not affect the validity of the remaining portion, which shall
continue in full force and effect as if this Agreement had been executed with
the invalid portion eliminated; provided, however, that this Agreement shall be
interpreted to carry out to the greatest extent possible the intent of the
Parties and to provide to each Party substantially the same benefits as such
Party would have received under this Agreement if such invalid part of this
Agreement had been enforceable. Whenever the words "include" or "including" are
used in the Agreement, they shall be deemed to be followed by the words "without
limitation."
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
ANALEX CORPORATION
By:
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
PEQUOT STOCKHOLDERS:
PEQUOT PRIVATE EQUITY FUND III, L.P.
By: Pequot Capital Management, Inc., as
Investment Manager
By:
-----------------------------------------------
Name:
Title:
Notice to: ▇▇▇▇▇ ▇▇▇▇▇▇
C/o Pequot Capital Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Pequot Capital Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Citicorp Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PEQUOT OFFSHORE PRIVATE EQUITY PARTNERS
III, L.P.
By: Pequot Capital Management, Inc., as
Investment Manager
By:
-----------------------------------------------
Name:
Title:
Notice to: ▇▇▇▇▇ ▇▇▇▇▇▇
C/o Pequot Capital Management, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Pequot Capital Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Citicorp Center, 35th Floor
New York, NY 10022
SCHEDULE I
Series A Pequot Stockholders
Name and Address
of Stockholder Capital Stock Amount
--------------------------------------- ------------------------ ---------
1. Pequot Private Equity Fund III, Series A Preferred Stock 5,895,397
L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇ ▇▇▇▇▇
c/o Pequot Capital Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Citicorp Center, ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2. Pequot Offshore Private Equity Series A Preferred Stock 831,060
Partners III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇ ▇▇▇▇▇
c/o Pequot Capital Management, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Citicorp Center, ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
