Exhibit 10.1 [Form of Subscription Agreement]
Exhibit 10.1
[Form of Subscription Agreement]
Elcom International, Inc.
00 Xxxxxx Xxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
The Directors
Xxxxx & Xxxxxxxxxx Investment Management Limited
00 Xxxxxxxx, Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
[ ] February 2007
Dear Sirs
Subscription of [ ] new shares of common stock, par value $0.01 per share ("Shares") in Elcom International,
Inc. at 1.75p per share (the "Subscription")
1 Subscription
1.1 In reliance upon the warranties and covenants set forth in the paragraphs below, you have applied for
the allotment and issue to you pursuant to Regulation S ("Regulation S") under the United States
Securities Act of 1933, as amended (the "US Securities Act") of [ ] Shares (the "Subscription Shares")
in Elcom International, Inc. ("Elcom" or the "Company") at a price of 1.75p per Subscription Share (the
"Subscription Price") on and subject to the terms set out in this letter.
1.2 The subscription for the Subscription Shares by you shall be made conditional upon the admission
("Admission") of such shares to AIM, a market operated by London Stock Exchange plc ("AIM"), becoming
effective in accordance with the rules for AIM ("AIM Rules") published by London Stock Exchange.
1.3 The Subscription Shares will be issued credited as fully paid subject to the terms and conditions of the
certificate of incorporation and by-laws, as each may be amended, of Elcom and the terms of this letter
and on issue will rank pari passu in all respects with the existing issued shares of common stock in the
capital of the Company.
1.4 You represent and warrant to us that in agreeing to subscribe for the Subscription Shares you have
relied only on publicly available information relating to Elcom and that you have not relied on any
warranty or representation made by Elcom, or any of its directors, employees, agents or advisers save
for the warranties in this letter.
1.5 Application will be made no later than [ ] February 2007 for the Subscription Shares to be admitted to
AIM. It is expected that Admission will become effective on [ ] February 2007.
1.6 You agree that, without us having any liability to you we may, in our absolute discretion, exercise the
right to terminate the Subscription without consulting you. If Admission has not become effective on or
before 8.00 a.m. on [ ] February 2007 your rights and obligations hereunder will cease and determine at
such time, and any moneys transferred to Xxxxx & Xxxxxxxxxx Investment Management Limited ("SWIM")
pursuant to paragraph 3.1 in respect of the Subscription will be returned to you, without interest, and
no claims may be made against us in respect thereof following receipt by you of such monies in cleared
funds.
1.7 In sending this subscription letter we are relying on your being either an "investment professional"
within the meaning of Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion)
Order 2005 or a company of a kind described in Article 49(2) of that Order or a person to whom this
subscription letter may otherwise be sent lawfully without infringing the general restriction set out in
section 21 of the Financial Services and Markets Xxx 0000 ("FSMA"). It is further sent on the
understanding that you acknowledge for the purposes of FSMA that past performance is not a guide to
future performance.
2 Confirmations
2.1 You confirm, represent, warrant and undertake with Elcom:
2.1.1 to subscribe for the Subscription Shares on the terms of this letter and to pay the Subscription Price;
2.1.2 that save as expressly provided in this letter, your obligations are irrevocable and shall not be
capable of rescission or termination by you in any circumstances;
2.1.3 that you are not resident in Canada, Japan or Australia or a "US person" (within the meaning of Rule
902(k) under Regulation S) and are not acting for the account or benefit of a US person (other
than a distributor);
2.1.4 that you are entitled to subscribe for the Subscription Shares under the laws of the United Kingdom
which apply to you and that you have fully observed such laws and complied with all necessary
formalities;
2.1.5 that you are either an "investment professional" within the meaning of Article 19(5) of the Financial
Services and Markets Xxx 0000 (Financial Promotion) Order 2005 or a company of a kind described
in Article 49(2) of that Order or a person to whom this subscription letter may otherwise be
sent lawfully without infringing the general restriction in section 21 of FSMA and you will
acquire, manage or dispose of the Subscription Shares (as principal or agent) for the purposes
of your business and that you are purchasing under the exemption provided by Regulation S;
2.1.6 that the Subscription Shares will not for a period of one year after Admission be offered, resold,
pledged or otherwise transferred by you (a "relevant transaction") except: (i) in an "offshore
transaction" (within the meaning of Rule 902(h) under Regulation S) meeting the requirements of
Rule 903 or Rule 904 of Regulation S, (ii) pursuant to an effective registration statement
filed under the US Securities Act, or (iii) if the registration requirements of the US
Securities Act would otherwise apply to the relevant transaction, pursuant to a relevant
exemption from the registration requirements of that Act and otherwise in accordance with all
applicable federal and state securities laws of the United States;
2.1.7 that you will notify any purchaser of the Subscription Shares from you of the resale restrictions
referred to in paragraph 2.1.6 above, if then applicable;
2.1.8 that, in any proposed transfer of Subscription Shares by you (other than pursuant to an effective
registration statement filed under the US Securities Act), you acknowledge that the transferee
of the Subscription Shares may, if so required in order to ensure compliance with the US
Securities Act, be obliged to provide certifications and other documentation relating to the
non-US person status of such transferee and such other agreement and documentation as may be
reasonably required by the Company or its transfer agent;
2.1.9 that you acknowledge that the Subscription Shares will bear a restrictive legend to the effect that
transfers of the Subscription Shares are prohibited except in accordance with the requirements
of Regulation S, pursuant to an effective registration statement filed under the US Securities
Act, or pursuant to an available exemption from registration and that hedging transactions
involving Subscription Shares may not be conducted except in compliance with the US Securities
Act, unless the Company determines otherwise in compliance with applicable US law; and
2.1.10 that you are not otherwise resident in any other territory in which it is unlawful to make an offer to
subscribe for Subscription Shares or to reply to this letter.
2.2 You further represent, warrant and undertake to Elcom and acknowledge that:
2.2.1 you are aware of, and have complied with, any obligations you have under the Criminal Justice Xxx 0000
and section 118 of FSMA, to the extent applicable to you in relation to the Company and the
Subscription Shares;
2.2.2 you shall keep confidential the terms of this agreement until the Company has publicly announced the
allotment of the Subscription Shares in accordance with the AIM Rules;
2.2.3 you are aware of the Company's business affairs and financial condition, and have acquired sufficient
information about the Company to reach an informed and knowledgeable decision to acquire
Shares; you will be acquiring the Subscription Shares for your own account as principal or for
a discretionary account or accounts (as to which you have the authority to make and do make the
statements in this subscription letter) for investment purposes only;
2.2.4 you agree to comply with any applicable rules and regulations of AIM, the US Securities and Exchange
Commission and applicable US state securities laws; and
2.2.5 this subscription letter and the enclosed form of confirmation is, and any contract which may be entered
into between you and ourselves pursuant hereto shall be, governed by and construed in
accordance with the laws of England and that you submit to the exclusive jurisdiction of the
English Courts as regards any claim, dispute or matter arising out of or related to this
subscription letter or such contract.
3 Payment and settlement
3.1 You will be required to arrange payment of the aggregate Subscription Price for value to the following
account of SWIM by no later than the close of business on the business day after the date of this letter:
Bank: Royal Bank of Scotland plc
Branch: London City Office
Sort Code: 15-10-00
Account No: 00000000
A/C name: Xxxxx & Xxxxxxxxxx Investment Management Limited
Ref: Elcom
Subject to Admission becoming effective no later than 8.00am on [ ] February 2007, SWIM is authorised by
you to pay the monies due on account of the Subscription Price for value to the account of Elcom
Systems Limited at National Westminster Bank plc, Slough branch, sort code 60-19-28, account number
00000000 not later than the business day after Admission. If, for any reason, Admission has not become
effective prior to 8.00am on [ ] February 2007, the Subscription will not be effected and shall be
terminated and any monies paid in respect of the Subscription Shares will be refunded, without
interest, in accordance with paragraph 1.6.
For the avoidance of doubt Xxxxx & Xxxxxxxxxx Corporate Finance Limited which is regulated in the United
Kingdom by the Financial Services Authority, is acting exclusively as nominated adviser to Elcom for
the purposes of the AIM Rules and is not acting for any other person in connection with the matters
described in this document and will not therefore be responsible to any other person for providing the
protections afforded to customers of Xxxxx & Xxxxxxxxxx Corporate Finance Limited or advising in
connection with the matters described in this document.
3.2 A certificate or certificates in respect of the Subscription Shares issued for each of the account
designations notified by you prior to allotment will be delivered to you as soon as practicable after
Admission.
4 Money laundering
4.1 It is a term of the agreement evidenced by this subscription letter that, to ensure compliance with the
Money Laundering Regulations 2003, SWIM may, in its absolute discretion, require verification of your
identity to the extent that you have not already provided the same. Pending the provision to SWIM of
evidence (if so requested) of identity, definitive certificates for the Subscription Shares may be
retained/delayed at our absolute discretion. If within a reasonable time after a request for
verification of identity SWIM have not received satisfactory evidence, we may, in our absolute
discretion terminate your commitment in which event the monies payable on acceptance of the allotment
will, if paid, be returned without interest to the account of the drawee bank from which they were
originally debited.
5 Warranties and undertakings of Elcom
In consideration of the subscription for the Subscription Shares by you, the Company warrants and undertakes with
you in the terms set forth below:
5.1 the Company is a corporation duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to carry on its business as
presently conducted and as proposed to be conducted;
5.2 the authorised capital stock of the Company consists of (and will consist of immediately prior to
Admission) 700,000,000 shares of common stock, of which 478,416,732 are issued and outstanding as of the
date of this subscription letter, and 10,000,000 shares of preferred stock, none of which are issued and
outstanding as of the date of this subscription letter. All of the outstanding Shares have been duly
authorised, are fully paid and non-assessable and were issued in compliance with all applicable US
federal and state securities laws.
5.3 the execution of this subscription letter has been duly and validly authorized by all necessary
corporate action on the part of the Company;
5.4 the issuance by the Company of the Subscription Shares pursuant to this subscription letter will not
conflict with any borrowing limits, powers or restrictions of, or the terms of any contract, agreement,
security, obligation or commitment or arrangement by which the Company is bound or to which any of its
properties, revenues or assets is subject, or result in the imposition of any rights upon any assets of
the Company or the violation of any obligations of the Company under any such contract, agreement,
security, obligation or commitment or arrangement;
5.5 the Subscription Shares, together with all rights attaching thereto, when issued in accordance with the
terms of this subscription letter, will be issued free and clear of all liens, charges and encumbrances;
and
5.6 save insofar as any matters that will be fully rectified by completion of your subscription for the
Subscription Shares and the receipt of the monies, the Company has not taken any action, nor have any
other steps been taken or legal proceedings started or threatened against the Company for its winding-up
or dissolution, or for the Company to enter into any arrangement or composition for the benefit of
creditors, or for the appointment of a receiver and/or manager, trustee or similar officer of the
Company in any jurisdiction or of its interests, properties, revenues or assets and no distress,
execution or other similar process has been commenced or undertaken in respect of the Company in any
jurisdiction.
Yours faithfully
for and on behalf of
ELCOM INTERNATIONAL, INC.
[FORM OF CONFIRMATION]
To:
The Directors
Elcom International, Inc.
00 Xxxxxx Xxx
Xxxxxxx
Xxxxxxxxxxxxx 00000
Dear Sirs
Subscription of [ ] new shares of common stock, par value $0.01 per share, in Elcom International, Inc. ("Elcom")
at 1.75p per share (the "Subscription Shares")
We hereby irrevocably undertake and agree to subscribe for the Subscription Shares on the terms and conditions
set out in your letter of [ ] February 2007 (the "Subscription Letter") the terms and conditions of which, and
the defined terms used therein, are, by reference, incorporated into this form of confirmation.
In particular (but without limitation) we confirm that in agreeing to subscribe for the Subscription Shares we
have relied only on publicly available information relating to Elcom and that we have not relied on any warranty
or representation made by Elcom, or any of its directors, employees, agents or advisers save for the warranties
given in the Subscription Letter. We confirm that in applying for the Subscription Shares we are able to give
the confirmations, undertakings, representations and warranties set out in the Subscription Letter. We also
confirm that we have obtained all necessary consents to enable us to subscribe for the Subscription Shares and to
perform our obligations specified in the Subscription Letter. We confirm that we will provide you with such
information as you may require in order to comply with your obligations under the Money Laundering Regulations
2003.
Yours faithfully
...................................................
for and on behalf of
Xxxxx & Xxxxxxxxxx Investment Management Limited
Dated: 2007
The registration details for the Subscription Shares are set out below:
Registered name: ......................................................................
Registered address: ........................................................................
........................................................................
_________________
