AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT
EXHIBIT
10.2
AMENDMENT
NO. 1
TO
This
AMENDMENT NO. 1, dated as of August 1, 2008, is among (a) ENCOMPASS GROUP
AFFILIATES, INC., formerly Advanced Communications Technologies, Inc., a Florida
corporation (the “Company”),
(b) ACT-DE, LLC (“HIG”)
and
(c) the Persons identified on Schedule 1
as
“Sankaty Investors” (the “Sankaty
Investors”)
to the
Original Agreement, and (d) any other Person who becomes a party to the
Original Agreement as hereby amended by executing an Instrument of Accession
thereto. Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to such terms in the Original Agreement.
W
I T
N E S S E T H:
WHEREAS,
HIG, the Sankaty Investors and the Company are parties to that certain Purchase
Agreement, of even date herewith, pursuant to which HIG and the Sankaty
Investors will purchase Series E Preferred Stock of the Company;
WHERAS,
in connection therewith, HIG, the Sankaty Investors and the Company are parties
to that certain Stockholder Agreement, dated August 17, 2007 (the “Original
Agreement”);
and
WHEREAS,
the parties desire to supplement and amend the Original Agreement in accordance
with the terms set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section
1
of the Original Agreement is hereby amended to add the following
definition:
“2008
Purchase Agreement.
2008
Purchase Agreement shall mean the Purchase Agreement, dated August 1, 2008,
among the Company, HIG and the Sankaty Investors.”
2. Section
1
of the Original Agreement is hereby amended to amend and restate subpart (a)
of
the definition of “HIG Securities” as follows:
“the
shares of Series C Preferred Stock issued to HIG pursuant to the Purchase
Agreement and the shares of Series E Preferred Stock issued to HIG pursuant
to
the 2008 Purchase Agreement,”
3. Section
1
of the Original Agreement is hereby amended to amend and restate subpart (a)
of
the definition of “Sankaty Securities” as follows:
“the
shares of Series C Preferred Stock issued to the Sankaty Investors pursuant
to
the Purchase Agreement and the shares of Series E Preferred Stock issued to
the
Sankaty Investors pursuant to the 2008 Purchase Agreement,”
4. Section
1
of the Original Agreement is hereby amended to amend and restate in its entirety
the definition of Preferred Stock as follows:
“Preferred
Stock.
Preferred Stock shall mean (a) the Company’s Series C Preferred Stock, $0.01 par
value per share (the “Series C Preferred Stock”), (b) the Company’s Series D
Preferred Stock, $0.01 par value per share, (c) the Company’s Series A-2
Preferred Stock, $0.01 par value per share (d) the Company’s Series E Preferred
Stock, $0.01 par value per share (the “Series E Preferred Stock”) and (e) any
capital stock of the Company which is (i) preferred as to distributions upon
a
liquidation of the Company or dividends over any other class of stock of the
Company, (ii) subject to redemption pursuant to the terms thereof or (iii)
issued to the holders of Preferred Stock upon any reclassification
thereof.”
5. The
introductory sentence of Section 2.1 of the Original Agreement is hereby amended
to delete “Series C” such that Section 2.1 applies to all “Preferred
Stock.”
6. The
first
paragraph of Section 2.3 of the Original Agreement is hereby amended and
restated in its entirety as follows:
“No
HIG
Stockholder may make a Transfer of Preferred Stock pursuant to clause (a)(iv)
of
Section 2.1 unless such HIG Stockholder complies with the provisions of
this Section 2.3. The transferring HIG Stockholder (the “TransferringStockholder”)
shall
deliver a written notice (the “Offer Notice”)
to the
Company and to each Sankaty Stockholder that holds the series of Preferred
Stock
proposed to be transferred. The Offer Notice will disclose in reasonable detail
the proposed number of shares of such series of Preferred Stock to be
Transferred, the proposed price, terms and conditions of the Transfer and the
identity of the transferee. Each of the Sankaty Stockholders holding such series
of Preferred Stock may elect to participate in the contemplated sale by
delivering written notice to the Transferring Stockholder within 10 days after
receipt of the Offer Notice. If any of such Sankaty Stockholders elects to
participate in such sale (the “Participating Stockholders”),
each
of the Transferring Stockholder and the Participating Stockholders will be
entitled to sell in the contemplated sale a number of shares of such series
of
Preferred Stock equal to the product of (i) the fraction, the numerator of
which is the number of shares of such series of Preferred Stock held by such
Person, and the denominator of which is the aggregate number of such series
of
Preferred Stock owned by the Transferring Stockholder and the Participating
Stockholders, multiplied
by
(ii) the number of shares of such series of Preferred Stock to be sold by
the Transferring Stockholder and the Participating Stockholders in the
contemplated sale.”
2
7. Section
6
of the Original Agreement is hereby amended to delete “or” prior to subpart (d)
thereof and to include the following as subpart (e) thereof:
“,
or (e)
vote for or consent to any amendment to the Certificate of Designation of the
Series E Preferred Stock.”
8. The
Original Agreement, as hereby amended and supplemented, shall remain in full
force and effect.
9. This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same
instrument.
3
EXHIBIT
10.2
IN
WITNESS WHEREOF, the parties have executed and delivered this instrument as
of
the date first above written.
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By:/s/
Xxxxx X.
Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
President and CEO
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ACT-DE,
LLC
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By:
/s/ Xxxxxxx X.
Xxxxx
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Name:
Xxxxxxx X. Xxxxx
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Title:
Executive Vice President
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[Remainder
of page left intentionally blank]
EXHIBIT
10.2
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PROSPECT
HARBOR CREDIT PARTNERS, L.P.
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By:
/s/
Xxx
Xxxxx
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Name:
Xxx Xxxxx
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Title:
Managing Director
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SANKATY
CREDIT OPPORTUNITIES II, L.P.
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By:
/s/
Xxx
Xxxxx
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Name:
Xxx Xxxxx
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Title:
Managing Director
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SANKATY
CREDIT OPPORTUNITIES III, L.P.
|
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By:
/s/
Xxx
Xxxxx
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Name:
Xxx Xxxxx
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Title:
Managing Director
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RGIP,
LLC
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By:
/s/
Xxx X.
Xxxxxx
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Name:
Xxx X. Xxxxxx
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Title:
Managing Member
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