August 17, 2007
Exhibit
10.35
August
17, 2007
Xxxxx
X.
Xxxxxx
President
and Chief Executive Officer
Advanced
Communications Technologies, Inc.
000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Dear
Xxxxx:
In
connection with the Exchange Agreement, dated the same date as this letter
agreement, among Advanced Communications Technologies, Inc. (the “Company”) and
the holders of its outstanding preferred stock, including YA Global Investments,
L.P., f/k/a/ Cornell Capital Partners, L.P. (“YA”), this will acknowledge that
YA’s obligations under the Exchange Agreement, and the Company’s obligations to
YA under the Exchange Agreement, are subject to the following:
1. The
Confidentiality and Mutual Nondisclosure Agreement between YA and the Company
dated November 17, 2006 (the “NDA”) shall govern YA’s obligations with respect
to proprietary and confidential information of the Company, and not Section
6.1
of the Exchange Agreement. The NDA is hereby modified and amended as
follows:
The
confidential and proprietary information provided to YA in connection with
this
transaction shall remain confidential pursuant to the NDA until the earlier
to
occur of (i) the filing of the Company’s amended Current Report on Form 8-K in
connection with the transactions described in the recitals to the Exchange
Agreement containing the financial statements and pro forma financial
information required by Item 9.01 of Form 8-K or (ii) the filing of the Charter
Amendment described in Section 2.5 of the Exchange Agreement.
2. YA
represents and warrants to the Company that YA Global Investments, L.P. is
the
same legal entity as Cornell Capital Partners, L.P. following a name change
and
change of domicile, as evidenced by charter documents provided to the Company
prior to the execution of this letter agreement.
3. Section
4.1 of the Exchange Agreement shall not be construed to release or waive any
claims or rights of YA (owned directly by YA or as successor to the rights
of
Xxxxx Xxxxx, another holder of the Series A Preferred Stock) under this letter
agreement, the Stock Transfer Agreement among YA and certain creditors or former
creditors of the Company, the Letter Agreement dated the date hereof from the
Company to relating to the satisfaction of debt owed to YA by the payment of
$275,611.11 and the issuance of 188.85 shares of Series A-2 Preferred Stock,
or
any agreement or instrument executed by the Company in connection with the
foregoing.
4. The
Company agrees to file a proxy or information statement relating to shareholder
approval of the Charter Amendment within 90 days after the date of this
Agreement. In the event the proxy or information statement is reviewed by the
SEC, the Company agrees to effect the Charter Amendment within 30 days after
completion of SEC review of an information statement or within 50 days after
completion of SEC review of a proxy statement. In the event the proxy statement
or information statement is not reviewed by the SEC, the Company agrees to
effect the Charter Amendment within 75 days after filing.
If
the
foregoing represents our agreement, please so indicate by signing in the place
indicated below.
YA
GLOBAL
INVESTMENTS, L.P.
By:
Yorkville Advisors, LLC, its Investment Manager
By:
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/s/
Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Senior
Managing Director
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Agreed
and Acknowledged
ADVANCED
COMMUNICATIONS
TECHNOLOGIES,
INC.
By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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President
and CEO
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Acknowledgment
and Limited Agreement of HIG Affiliate:
ACT-DE,
LLC, an Affiliate of H.I.G. Capital, LLC, acknowledges the foregoing letter
agreement between YA and the Company. ACT-DE, LLC hereby covenants and agrees
that it will vote all of the Company’s capital stock purchased
by, issued to or otherwise acquired by ACT-DE,
LLC in favor of the Charter Amendment referenced in the Certificate of
Designation for the Series A-2 Preferred Stock at any shareholder meeting,
or in
any written consent, pursuant to which such Charter Amendment is submitted
for approval.
ACT-DE,
LLC
By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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