Exhibit 10.1
AGREEMENT
This Agreement, dated as of March 23, 2006, is entered into by and among Xxxxx & Xxxxxxxxxx Investment
Management Limited ("SWIM") and Xxxxx & Xxxxxxxxxx Nominees Limited ("SWIM Nominees" and, collectively with SWIM,
the "SWIM Entities"), Elcom International, Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxx
("Xxxxxxx"), Xxxx X. Xxxxxx ("Halnen"), Xxxxxxx X. Xxxxx ("Xxxxx"), Xxxx X. Xxxxx ("Xxxxx") and Xxxxxxx X.
Xxxxxxx, Xx. ("Xxxxxxx"), each of whom is a director of the Company. Messrs. Crowell, Halnen, Xxxxx, Xxxxx and
Xxxxxxx are sometimes referred to in this Agreement individually as, a "Director" and collectively as, the
"Directors."
WHEREAS, the SWIM Entities sent a letter, dated March 6, 2006, to Xx. Xxxxxxx, in his capacity as
Chairman of the Board of Directors of the Company (the "Request Letter"), in which the SWIM Entities requested,
pursuant to Article III, Section 2 of the By-laws of the Company, that the Board of Directors of the Company call
a special meeting of the stockholders of the Company for the purposes of, among other things, removing each of
Messrs. Xxxxxxx, Xxxxx and Xxxxx as directors of the Company and electing each of Xxxx X. Xxxxx, an individual
with an address at 00 Xxxxxxxxx Xxxxxxx, Xxxxx, Xxxxxx XX0 0XX Xxxxxx Xxxxxxx ("Xxxxx"), Xxxxxx Xxxxx, an
individual with an address at 00x Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxx XX0 0XX Xxxxxx Xxxxxxx ("Bance"), and Xxxxxx
Xxxxxx, an individual with an address at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 ("Dignam"),
as directors of the Company to fill the vacancies resulting from such removals;
WHEREAS, in accordance with the By-laws of the Company, the Board of Directors of the Company, at a
meeting on March 13, 2006, called a special meeting of the stockholders of the Company (the "Special Meeting")
for the purposes set forth in the Request Letter, to be held on May 19, 2006;
WHEREAS, the SWIM Entities have filed a Schedule 13-D representing that they beneficially own
254,209,142 shares of common stock, $0.01 par value per share, of the Company (the "Common Stock"), representing
approximately 63.6% of the currently outstanding Common Stock, and have indicated their intention to vote "for"
the approval of each of the proposals described in the Request Letter to be considered by the stockholders of the
Company at the Special Meeting; and
WHEREAS, in light of the voting interest represented by the shares of Common Stock beneficially owned by
the SWIM Entities, the SWIM Entities' indicated intention to vote "for" the approval of each of the proposals to
be considered at the Special Meeting, and to preclude any additional uncertainty and minimize the efforts and
resources that the Company would be required to expend in preparing for and holding the Special Meeting, the
parties hereto desire to provide for a more orderly transition of certain of the members constituting the Board
of Directors of the Company and rescind the calling of the Special Meeting in the manner set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Initial Appointment of New Director. The Board of Directors of the Company will hold a meeting on the
date of this Agreement at which meeting each of the Directors hereby agrees to vote in favor of a resolution
appointing Xx. Xxxxx as a Class II director of the Company effective as of the end of the day on March 23, 2006,
to fill one of the existing vacancies in the Board of Directors, and to serve until his successor is duly elected
and qualified or until his earlier resignation, death or removal.
2. Resignation and Appointment of Directors.
(a) Subject to the terms and conditions of this Agreement, effective as of April 21, 2006, each of Messrs.
Crowell, Smith, Xxxxx and Xxxxxxx, by their respective individual signatures below, hereby resigns as a Director
of the Company.
(b) Subject to and upon the effectiveness of the resignations of each of Messrs. Crowell, Smith, Xxxxx and
Xxxxxxx pursuant to Section 2(a) above, the Board of Directors of the Company (which shall at that time be
comprised of Xx. Xxxxxx and Xx. Xxxxx) will hold a meeting at which Xx. Xxxxxx hereby agrees to vote in favor of
a resolution appointing Messrs. Bance and Dignam as directors of the Company, subject to confirmation of their
qualification to serve as directors of a U.S. public company, each to fill one of the vacancies in the Board of
Directors, and each to serve until his successor is duly elected and qualified or until his earlier resignation,
death or removal.
(c) Subject to and upon the effectiveness of the resignation of Xx. Xxxxxxx pursuant to
Section 2(a) above and upon receipt by the Company of a release agreement duly executed by Xx. Xxxxxxx consistent
with Section 6.2(b) of Xx. Xxxxxxx'x Employment Agreement with the Company dated as of December 21, 2005, Xx.
Xxxxxxx shall receive in consideration thereof, a severance payment of Seventy-Two Thousand Dollars ($72,000.00)
to be paid within ten (10) days after Xx. Xxxxxxx'x resignation on April 21, 2006, in accordance with the laws of
the Commonwealth of Massachusetts.
(d) In any case, the Directors will continue to observe and abide by their fiduciary
duties as Directors until the effective date of their resignations.
3. Special Meeting. Upon the occurrence of Xx. Xxxxx being appointed as a Director of the Company, the
SWIM Entities hereby rescind, in its entirety, the Request Letter, including the request therein that the Board
of Directors of the Company call a special meeting of stockholders in accordance with Article III, Section 2 of
the Bylaws of the Company. Upon the occurrence of Xx. Xxxxx being appointed as a Director of the Company, the
SWIM Entities acknowledge and agree that the Board of Directors of the Company may rescind and cancel the calling
of the Special Meeting, that the Company shall have no further obligation for such Special Meeting, and the
Company may make public disclosure of such cancellation as it may deem necessary or advisable. Provided that the
resignation of Messrs. Crowell, Smith, Xxxxx and Xxxxxxx becomes effective on April 21, 2006 pursuant to Section
2(a) above, the SWIM Entities will not submit, and will not cause any affiliates of the SWIM Entities to submit,
a request for a special meeting of the stockholders of the Company until after such time as Messrs. Xxxxx, Xxxxx
and Dignam have been appointed as directors of the Company in accordance with this Agreement.
4. General.
(a) Specific Performance. In addition to any and all other remedies that may be available at law in the
event of any breach of this Agreement, each party hereto shall be entitled to specific performance of the
agreements and obligations of the other parties hereunder and to such other injunctive or other equitable relief
as may be granted by a court of competent jurisdiction.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the General
Corporation Law of the State of Delaware, as to matters within the scope thereof, and the internal laws of the
Commonwealth of Massachusetts (without reference to the conflicts of law provisions thereof), as to all other
matters.
(c) Notices. All notices, requests, consents, and other communications under this Agreement shall be in
writing and shall be deemed delivered (i) three business days after being sent by registered or certified mail,
return receipt requested, postage prepaid or (ii) one business day after being sent via a reputable nationwide
overnight courier service guaranteeing next business day delivery, in each case to the intended recipient as set
forth below:
If to the Company, at Elcom International, Inc., 00 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chief Executive Officer, or at such other address as may have been furnished in writing by the
Company to the other parties hereto, with a copy to Xxxxxx, Halter & Xxxxxxxx LLP, 1400 XxXxxxxx Investment
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.; or
If to a Director, at his address set forth on the signature page to this Agreement, or at such other
address as may have been furnished in writing by such Director to the other parties hereto; or
If to the SWIM Entities, at Xxxxx & Xxxxxxxxxx Investment Management Limited, 00 Xxxxxxxx, Xxxxxx XX0X
0XX Xxxxxx Xxxxxxx, Attention: C.O. Motley, or at such other address as may have been furnished in writing by the
SWIM Entities to the other parties hereto, with a copy to Xxxxxx & Bird LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxx, Esq.
Any party may give any notice, request, consent or other communication under this Agreement using any
other means (including, without limitation, personal delivery, messenger service, telecopy, first class mail or
electronic mail), but no such notice, request, consent or other communication shall be deemed to have been duly
given unless and until it is actually received by the party for whom it is intended. Any party may change the
address to which notices, requests, consents or other communications hereunder are to be delivered by giving the
other parties notice in the manner set forth in this Section.
(d) Miscellaneous. This Agreement constitutes the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof, and supersedes all prior agreements and understandings relating to
such subject matter. This Agreement may be amended or terminated only in a writing executed by each party hereto
which specifically references this Agreement. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, and all of which together shall constitute one and the same
document. This Agreement may be executed by facsimile signatures.
* * * * *
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the day and year first
above written.
SWIM ENTITIES:
XXXXX & XXXXXXXXXX INVESTMENT
MANAGEMENT LIMITED
and
XXXXX & XXXXXXXXXX NOMINEES
LIMITED
By: /s/ C.O. Motley
Name: C.O. Motley
Title: Director
COMPANY:
ELCOM INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
DIRECTORS:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Address: 000 Xxxxxxx Xxxxxx Address: 00 Xxxxxxxxxx Xxxx
Xxxxx, XX 00000 Xxxxxxx, XX 00000
/s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxxx Xxxx X. Xxxxx
Address: 00 Xxxxxxxxx Xxxxxx Address: 00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, Xx.
Address: 00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
