EXHIBIT 99.5
AMENDMENT
TO
SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this "Amendment") is
made as of the 1 day of March, 2002, by and between Essex Corporation, a
Virginia corporation with headquarters located at 0000 Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000 (the "Company") and The Xxxxxx Family, LLC (the "Purchaser").
WHEREAS, the Company and the Purchaser entered into a certain
Securities Purchase Agreement, dated December 14, 2001 (the "Purchase
Agreement"), pursuant to which the Purchaser agreed to purchase 38,462 shares of
the Company's common stock (the "Common Stock") at a price equal to $6.50 per
share; and
WHEREAS, Subsequent to the execution of the Purchase Agreement, the
Purchaser has agreed to purchase additional shares of Common Stock with a total
purchase price of $1,000,000; and
WHEREAS, the Company and the Purchaser agree that for any shares of
Common Stock that have not been purchased on or before the date hereof, the
Purchaser shall be granted anti-dilution protection regarding the price per
share of the Common Stock purchased by the Purchaser under the Purchase
Agreement, as amended hereby; and
WHEREAS, the Company and the Purchaser desire through this Amendment to
amend the Purchase Agreement to reflect the foregoing;
NOW, THEREFORE, in consideration of the foregoing, the Purchase
Agreement is amended as follows:
1. AMENDMENT TO THE PURCHASE AGREEMENT. The Purchase Agreement
is hereby amended as follows:
(a) By deleting in its entirety recital B of the Purchase
Agreement and substituting the following in lieu thereof:
"B. The Purchaser desires to purchase, upon the terms
and conditions stated in this Agreement, shares of Common Stock, no par
value of the Company, at the option of the Company exercisable from
time to time as described below."
(b) By deleting Paragraph 1(a) of the Purchase Agreement and
substituting the following in lieu thereof:
"(a) The Company agrees to issue and sell to the
Purchaser and the Purchaser agrees to purchase shares of Common Stock
(the "SHARES") as more specifically set forth herein: an aggregate of
38,462 Shares at Closing at a price of $6.50 per Share, and 153,846
additional Shares (such number to be adjusted as set
forth below) at a price of $6.50 per Share (the "ADDITIONAL SHARE
PRICE") from time to time, at the written request of the Company (each,
a "PURCHASE REQUEST") in the form attached hereto as EXHIBIT B, made on
or before December 31, 2002; PROVIDED, HOWEVER, that the Additional
Share Price for Shares subject to any Purchase Request shall be
adjusted as follows: in the event the Company consummates a private
placement of Common Stock to one or more institutional investor(s) at a
price below $6.50 per share after the date hereof and on or before
December 31, 2002, the Additional Share Price shall be reduced to the
price per share paid by such institutional investor(s), but in no event
shall the Additional Share Price be adjusted below $3.00 per Share.
Notwithstanding anything to the contrary contained in the foregoing,
the Purchaser hereby agrees to purchase additional Shares with an
aggregate purchase price of $1,000,000, and any adjustment in the
Additional Share Price shall cause the number of additional Shares
subject to a Purchase Request to be increased accordingly.
(c) Exhibit B to the Purchase Agreement shall be in the form
attached hereto.
2. EFFECT OF AMENDMENT. This Amendment is intended to modify the
provisions of the Purchase Agreement. In the event that there is a conflict
between the terms of this Amendment and the Purchase Agreement, the parties
intend that the provisions of this Amendment should govern their respective
rights and obligations. Except as hereby amended, all other terms and conditions
of the Purchase Agreement remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Purchaser and the Company have caused this
Amendment to Securities Purchase Agreement to be duly executed as of the date
first written above.
COMPANY:
ESSEX CORPORATION
By: s/s Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
PURCHASER:
THE XXXXXX FAMILY, LLC
By: Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title:
1409022
EXHIBIT B
ESSEX CORPORATION
NOTICE OF PURCHASE REQUEST
TO: THE XXXXXX FAMILY TRUST, LLC
0000 Xxxxxxxx Xxxx Xxxxxxxx, XX 00000
FROM: ESSEX CORPORATION DATE: ________________
THIS NOTICE IS PROVIDED IN CONNECTION WITH THE COMMON STOCK PURCHASE AGREEMENT
DATED DECEMBER 14, 2001, AS AMENDED BY THE AMENDMENT TO SECURITIES PURCHASE
AGREEMENT, DATED MARCH 1, 2002, BY AND BETWEEN ESSEX CORPORATION AND THE XXXXXX
FAMILY, LLC (THE PURCHASE AGREEMENT?. WORDS AND EXPRESSIONS DEFINED IN THE
PURCHASE AGREEMENT SHALL BEAR THE SAME MEANINGS AS IN THIS NOTICE AND THE TERMS
AND CONDITIONS CONTAINED IN THE PURCHASE AGREEMENT ARE HEREBY INCORPORATED BY
REFERENCE AND DEEMED TO BE A PART OF THIS NOTICE.
Essex Corporation hereby makes a Purchase Request pursuant to the Purchase
Agreement as follows:
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(a) No. of Shares:
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(b) Aggregate Purchase Price
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(c) Closing Date
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ESSEX CORPORATION
By: ________________________________
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
* * * * * * * * *
We hereby confirm that each of the representations and warranties of the
Purchaser in the Purchase Agreement is true and accurate on the date hereof,
that the Purchaser has satisfied each condition precedent to Closing
contemplated by this Notice and that the Purchaser remains in compliance with
each and every obligation and covenant made by the Purchaser in the Purchase
Agreement and acknowledge our obligation to purchase and pay for the Shares in
accordance with the terms of the Purchase Agreement.
THE XXXXXX FAMILY, LLC
By: _______________________________
Name:
Title:
Date: _______________________________