Exhibit 10.5
AMENDMENT NO. 2
to the
AMENDED AND RESTATED STRUCTURED EQUITY LINE FLEXIBLE
FINANCING(SM) AGREEMENT
THIS AMENDMENT NO. 2 to the AMENDED AND RESTATED STRUCTURED EQUITY LINE
FLEXIBLE FINANCING(SM) AGREEMENT ("Amendment") is dated as of June 12, 2000
between Cripple Creek Securities, LLC, a limited liability company organized and
existing under the laws of the state of New York (the "Investor"), and Elcom
International, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Company"). Capitalized terms not defined herein shall
have the meanings assigned to them in that certain Amended and Restated
Structured Equity Line Flexible Financing(SM) Agreement dated as of April 7,
2000 (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Company and the Investor entered into the Agreement,
pursuant to which the Company may issue to the Investor, and the Investor shall
purchase from the Company, from time to time as provided therein, shares of the
Company's common stock, par value $.01 per share, for a maximum aggregate
Purchase Price of $50,000,000; and
WHEREAS, the Company and the Investor desire to amend the Agreement in
certain respects.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
AGREEMENT
Section 1.1 Section 2.2(b) of the Agreement is hereby amended and
restated in its entirety as follows:
"(b) Investment Period Limits. Notwithstanding the obligation of the
Investor to purchase shares of Common Stock pursuant to Section 2.1(a), the sum
of the Investment Amounts for any Investment Period (whether pursuant to a
Company Put Amount or Investor Call Amount(s) or both) shall not exceed the
lesser of (x) the Company Put Amount plus the sum of all Investor Call Amounts,
if any, (y) an amount equal to the product of (I) 8% of the average daily Value
of Open Market Trading of the Common Stock on the Principal Market for each
Trading Day during the Investment
<PAGE>
Period immediately preceding such Investment Period times (II) the sum of (A)
the number of Trading Days in which the Stock Price is above the Floor Price,
and (B) the number of Trading Days that are designated by the Investor as
Included Days pursuant to Section 2.4(b), in each of cases (A) and (B), in such
immediately preceding Investment Period, (III) rounded up to the next increment
of $10,000, and (z) an amount equal to 8% of the aggregate Value of Open Market
Trading of the Common Stock on the Principal Market for each Trading Day during
such Investment Period either (I) in which the Stock Price is above the Floor
Price, or (II) that is designated by the Investor as an Included Day pursuant to
Section 2.4(b) rounded up to the next increment of $10,000 (the lower of the
amounts referred to in clauses (y) and (z), the "Volume Limit"); provided,
however, that the Investor may waive, in whole or in part, the Volume Limit in
any Investment Period."
ARTICLE II
MISCELLANEOUS
Section 2.1 No Third Party Beneficiaries. This Amendment is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person. Section 2.2 Governing Law. This Amendment shall
be governed by and construed and enforced in accordance with the internal laws
of the State of Delaware without regard to such state's principles of conflict
of laws. Section 2.3 Execution. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart. Section
2.4 Agreement Otherwise Unchanged. Except as amended hereby and previously, the
Agreement shall remain unchanged and in full force and effect.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to the Amended and Restated Structured Equity Line Flexible Financing(SM)
Agreement to be duly executed by their respective authorized officers as of the
date hereof.
CRIPPLE CREEK SECURITIES, LLC ELCOM INTERNATIONAL, INC.
By: /s/ Robert L. Chender By: /s/ Peter A. Rendall
Name: Robert L. Chender Name: Peter A. Rendall
Title: Principal Title: Chief Financial Officer
[Signature Page to Amendment No. 2 to the Amended and Restated Structured
Equity Line Flexible Financing Agreement]
3
