AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT
Exhibit
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Execution Copy
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
“Transferring Stockholder”) 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.”
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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.
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Execution Copy
IN WITNESS WHEREOF, the parties have executed and delivered this instrument as of the date
first above written.
| ENCOMPASS GROUP AFFILIATES, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | President and CEO | |||
| ACT-DE, LLC |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Executive Vice President | |||
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Execution Copy
| PROSPECT HARBOR CREDIT PARTNERS, L.P. |
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| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Managing Director | |||
| SANKATY CREDIT OPPORTUNITIES II, L.P. |
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| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Managing Director | |||
| SANKATY CREDIT OPPORTUNITIES III, L.P. |
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| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Managing Director | |||
| RGIP, LLC |
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| By: | /s/ Xxx X. Xxxxxx | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | Managing Member | |||
