AMENDMENT TO EMPLOYMENT AND NON-COMPETITION AGREEMENT
AMENDMENT TO EMPLOYMENT AND
NON-COMPETITION AGREEMENT
This Amendment to Employment and
Non-Competition Agreement (this “Amendment”) is entered into between Encompass
Group Affiliates, Inc., f/k/a Advanced Communications Technologies, Inc., a
Florida corporation (“Employer”), and Xxxxx X Xxxxxx, an individual whose
address is 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 (“Executive”), effective as
of July 31, 2009.
BACKGROUND
Employer and Executive are party to an
Employment Agreement dated as of August 17, 2007 (the “Employment Agreement”),
which sets forth the terms and conditions of Executive’s employment with
Employer. Employer and Executive wish to amend the terms of the
Employment Agreement as set forth herein, and, hereafter, references to the
“Employment Agreement,” “Agreement,” “herein,” or words of like import in the
Employment Agreement shall refer to the Employment Agreement as amended
hereby.
NOW, THEREFORE, in consideration of the
premises and the mutual agreements contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
1. All
capitalized terms used herein and not defined herein shall have the respective
meanings assigned to them in the Employment Agreement.
2. Paragraph
(d) of Schedule 1 of the Employment Agreement, containing the definition of
“Performance Bonus,” is hereby deleted in its entirety and replaced with the
following:
“Performance Bonus” means, with respect
to any fiscal year of Encompass Group Affiliates, Inc.:
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(i)
if Actual EBITDA for such fiscal year is less than ninety percent
(90%) of the Target EBITDA for such fiscal year,
zero;
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•
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(ii)
if Actual EBITDA for such fiscal year is equal to ninety percent
(90%) of the Target EBITDA for such fiscal year, an amount equal to
thirty-five percent (35%) of the Base
Salary;
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•
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(iii)
if Actual EBITDA for such fiscal year is more than ninety percent
(90%) and less than one hundred percent (100%) of the Target EBITDA for
such fiscal year, an amount equal to the sum of (A) thirty five percent
(35%) of the Base Salary plus (B) the product of three and 50/100 percent
(3.50%) of the Base Salary multiplied by the number of full percentage
points by which Actual EBITDA exceeds ninety percent (90%) of the Target
EBITDA; and
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(iv)
if Actual EBITDA for such fiscal year equals of exceeds one hundred
percent (100%) of the Target EBITDA for such fiscal year, an amount equal
to seventy percent (70%) of the Base
Salary
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3. Paragraph
(e) of Schedule 1 of the Employment Agreement, containing the definition of
“Performance Bonus,” is hereby deleted in its entirety and replaced with the
following
(i) “Target EBITDA” means,
(a) for Encompass' 2009 fiscal year:
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·
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2008
- $8,100,000
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2009
- $13,000,000
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and (b)
for each complete fiscal year of Encompass during the Term thereafter, an amount
to be determined by the Compensation Committee no later than 30 days after the
Board's approval of Encompass' budget for such fiscal year; provided, that if
Encompass or any of its subsidiaries in any fiscal year enters into any
extraordinary transaction, such as a business acquisition or disposition, the
Compensation Committee in the exercise of its sole discretion may, at any time
during such fiscal year, adjust upward or downward the Target EBITDA for such
fiscal year to take into account such extraordinary transaction. The
Compensation Committee shall notify Executive of the Target EBITDA for any such
fiscal year promptly after determining such Target EBITDA.
4. Except
as amended hereby, all terms and conditions as set forth in the Employment
Agreement shall remain in full force and effect.
5. This
Amendment may be executed in a number of counterparts, each of which shall be an
original but all of which together shall constitute one instrument.
[Signature
page follows]
2
IN WITNESS WHEREOF, the parties have
caused this Amendment to be executed as of the date first above
written.
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By:
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Xxxx
X. Xxxxxxx
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Vice
President & Chief Financial Officer
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XXXXX
X. XXXXXX
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