Exhibit 10.9


 


EMPLOYMENT AGREEMENT


This
EMPLOYMENT AGREEMENT (“Agreement”) is effective this
         day of January, 2007, between
American Defense Systems, Inc. (“the Company”) and Gary Sidorsky (“Executive”)
(sometimes referred to herein individually as “Party” or collectively as
“Parties”).


WHEREAS,
the Company, having employed Executive on an ongoing basis, now wishes to
formalize the relationship and employ Executive on the terms and conditions
contained in this Agreement; and Executive wishes to accept such employment.


NOW
THEREFORE, in consideration of the promises and the mutual agreements herein
contained, the Parties hereto, intending to be legally bound, hereby agree as
follows:


1.  DEFINITIONS.  Those words and terms that have special
meanings for purposes of this Agreement are specially defined through the use
of parenthetical quotations and upper-lower case lettering.


2.  EMPLOYMENT.


2.1.  Position and Term. 
The Company hereby employs Executive as Chief Financial Officer,
reporting directly to the Company’s Chief Executive Officer, and Executive
hereby accepts said employment and agrees to render such services to the
Company on the terms and conditions set forth in this Agreement.  Unless terminated in accordance with Section
5 below, this Agreement shall terminate five (5) years from the Effective Date
of this Agreement (the “Initial Term”); provided, however, that, while this
Agreement is in effect, beginning one (1) year following the Effective Date and
continuing on each one-year anniversary of the Agreement (the “Annual Renewal
Date”), this Agreement shall be automatically extended for an additional one
(1) year (“Renewal Term”), unless one of the Parties gives the other Party
written notice of non-renewal (in accordance with Section 6.2 below) at least
thirty (30) days before the impending Annual Renewal Date (in which event this
Agreement shall continue in effect for the remainder of the then current
Term).  Reference herein to “Term” shall
refer both to the Initial Term and any successive Renewal Term, as the context
requires.


 


2.2.  Duties.  During the
Term, Executive shall devote his full working time, attention and best efforts
to further the interests of the Company and shall perform such services for the
Company as are consistent with his position.


 


3.  COMPENSATION AND BENEFITS.


3.1.  Base Salary.  For services rendered by Executive under this
Agreement, the Company shall pay Executive a minimum base salary of $153,000
per year (“Base Salary”).  The Company’s
Chief Executive Officer shall review and Executive’s Base Salary on an annual
basis and may, in his sole discretion, increase the Base Salary from time to
time in such amounts as may determined by him. 
Said Base Salary shall be


 


 


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payable in accordance with the Company’s
regular payroll practices for executive employees.


 


3.2.  Bonus(es). 
Executive shall be entitled to the bonus or bonuses set forth in
Schedule A hereto, which is incorporated by reference hereto.


 


3.3.  Withholding. 
All payments required to be made by the Company to Executive under this
Agreement shall be subject to the withholding of such amounts, if any, relating
to tax and other payroll deductions as must be withheld pursuant to any
applicable law or regulation.


 


3.4.  Stock Options.  Executive shall be eligible to participate in
the Company’s Stock Option Plan as it may be amended from time to time.  All grants under the Stock Option Plan shall
be made in accordance with and subject to the terms thereof.


 


3.5.  Benefits.  Except as otherwise provided in
this Agreement, Executive shall be entitled to participate in and receive the
benefits of any benefit plans, benefits and privileges given to similar level
employees of the Company, to the extent commensurate with his then duties and
responsibilities (“Benefit Plans”) when and if such Benefit Plans are
established by the Company.  The Company
shall not make any changes in such Benefit Plans that would adversely affect
Executive’s rights or benefits thereunder unless such change occurs pursuant to
a program applicable to all similar level employees of the Company and does not
result in a proportionately greater adverse change in the rights of or benefits
to Executive as compared with any other similar level employee of the
Company.  With limiting the above,
Executive shall be entitled to the benefits set forth in Schedule A hereto.


 


4.  SUPPORT AND EXPENSES


4.1.  Support.  The Company shall provide Executive with
secretarial, administrative and support staff, and furnished offices and
conference facilities, in the Hicksville, New York area, and in such other
location, if any, in which Executive hereafter agrees to perform services on
behalf of the Company, all of which shall be consistent with Executive’s duties
and sufficient for the efficient performance of those duties.


4.2.  Expenses.  The Company
shall reimburse Executive or otherwise provide for or pay for all reasonable
expenses incurred by Executive in furtherance of, or in connection with, the
Company’s business, including, but not by way of limitation, traveling
expenses, communication expenses, and all reasonable entertainment expenses
(whether incurred at Executive’s residence, while traveling or otherwise),
subject to such reasonable documentation and other limitations as may be
established by the Company.


5.  TERMINATION.


5.1.  Termination Due to Death.  This Agreement shall terminate automatically
upon Executive’s death, in which event the Company shall promptly pay his
spouse or estate, as applicable, all compensation, expenses and other amounts
owed to him as of the


 


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date
of his death and thereafter shall have no further obligation to pay him
compensation (unless required by applicable law).


5.2.  Termination Due to
Disability.  The Company
shall have the right to terminate Executive’s employment due to his Disability,
in which event the Company shall promptly pay him all compensation, expenses
and other amounts owed to him as of the Date of Termination (as defined in
Section 5.10 below) and thereafter shall have no further obligation to pay him
compensation (unless required by applicable law).  “Disability” for purposes of this Section
shall mean Executive is unable to perform the essential functions of his
position with or without accommodation due to a disability (as such term is
defined in the Americans with Disabilities Act) for at least six months in the
aggregate during any twelve month period. 
This definition shall be interpreted and applied consistent with the
Americans with Disabilities Act and other applicable laws.


5.3.  Termination by Executive
without Good Reason.  Executive
shall have the right to terminate his employment at any time without Good
Reason (as that term is defined in Section 5.6 below, and subject to the
conditions specified in Section 5.10 below), in which event the Company shall
promptly pay him all compensation, expenses and other amounts owed to him as of
the Date of Termination (as defined in Section 5.10 below) and thereafter shall
have no further obligation to pay him compensation (unless required by
applicable law).


5.4.  Termination by the Company
Without Cause.  The Company
shall have the right to terminate Executive’s employment without Cause upon
sixty (60) days written notice (subject to and in accordance with Sections 5.10
and 6.2 below), in which event the Company shall: (a) on the Date of
Termination, pay Executive all compensation, expenses and other amounts owed to
him as of the Date of Termination (as defined in Section 5.10 below); and (b)
continue to pay Executive’s Base Salary (in effect as of the Date of
Termination) for the remainder of the Term or for two (2) years after the Date
of Termination, whichever is greater; provided however, that upon a termination
pursuant to this Section 5.4 within six (6) months before the effective date of
a Change in Control (as defined herein), or within eighteen (18) months
following the effective date of such a Change in Control, the Company shall
continue to pay Executive’s Base Salary for the remainder of the Term or for
three (3) years after the Date of Termination, whichever is greater.  “Change in Control” as used in this Agreement
means the occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following events:  (i)  any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) (an “Exchange Act Person”) becomes the “beneficial owner”
(as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing more than fifty percent (50%) of the
combined voting power of the Company’s then outstanding securities other than
by virtue of a merger, consolidation or similar transaction.  Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because the level of ownership held
by any Exchange Act Person (the “Subject Person”) exceeds the designated percentage
threshold of the outstanding voting securities as a result of a repurchase or
other acquisition of voting securities by the Company reducing the number of
shares outstanding, provided that if a Change in Control would occur (but for
the


 


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operation
of this sentence) as a result of the acquisition of voting securities by the
Company, and after such share acquisition, the Subject Person becomes the owner
of any additional voting securities that, assuming the repurchase or other
acquisition had not occurred, increases the percentage of the then outstanding
voting securities owned by the Subject Person over the designated percentage
threshold, then a Change in Control shall be deemed to occur;  (ii) there is consummated a merger, consolidation or
similar transaction involving (directly or indirectly) the Company if,
immediately after the consummation of such merger, consolidation or similar
transaction, the stockholders of the Company immediately prior thereto do not
own, directly or indirectly, either (A) outstanding voting securities
representing more than fifty percent (50%) of the combined outstanding voting
power of the surviving entity in such merger, consolidation or similar
transaction or (B) more than fifty percent (50%) of the combined outstanding
voting power of the parent of the surviving entity in such merger,
consolidation or similar transaction; (iii) 
there is consummated a sale, lease, license or other disposition of all
or substantially all of the consolidated assets of the Company and its
subsidiaries, other than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and its
subsidiaries to an entity, more than fifty percent (50%) of the combined voting
power of the voting securities of which are owned by stockholders of the
Company in substantially the same proportion as their ownership of the Company
immediately prior to such sale, lease, license or other disposition; or
(iv)  during any period of 12 consecutive
months, individuals who at the beginning of such period constitute the Board of
Directors of the Company cease for any reason to constitute at least a majority
thereof unless the election, or the nomination for election by stockholders, of
each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of the
period.


5.5.  Termination by the Company
for Cause.  The Company
shall have the right to terminate Executive’s employment for Cause subject to
the conditions set forth herein.  If the
Company terminates Executive’s employment for Cause, the Company shall promptly
pay Executive all compensation, expenses and other amounts owed to him as of
the Date of Termination (as defined in Section 5.10 below) and thereafter shall
have no further obligation to pay him compensation.  As used in this Agreement, “Cause” shall mean
any of the following: (a) Executive’s conviction of a felony crime; (b)
Executive’s commission of fraud against, or embezzlement or material
misappropriation from, the Company; or (c) Executive’s material breach of this
Agreement.  With respect to matters
relating to subsections 5.5(b) and (c) herein, the Board shall give Executive
prompt notice (in accordance with Section 6.2 below), and shall afford
Executive thirty days after his receipt of such written notice to cure such
grounds.  Cause shall be determined in
good faith by the affirmative vote of a majority of the whole Board (excluding
Executive if he is a member of the Board) after Executive has been provided the
opportunity to make a presentation to the Board (which presentation may be with
counsel).


5.6.  Termination by Executive for Good Reason.  Executive shall have the right to terminate
his employment for Good Reason, in which event he shall be entitled to receive
the same payments and benefits specified in Section 5.4 of this Agreement.  “Good Reason” shall mean the occurrence of
any of the following without Executive’s prior express written consent: (a) the
Company, or a successor as contemplated in Section 6.1 below, breaches any
material term of this Agreement; (b) the Company, or a successor as
contemplated in Section 6.1


 


 


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below, makes or causes a material adverse change
in his functions, duties or responsibilities; (c) the Company, or a successor
as contemplated in Section 6.1 below, reduces his Base Salary (as the same may
be increased from time to time); (d) the Company, or a successor as
contemplated in Section 6.1 below, causes or allows a material reduction in his
entitlement to benefits under Section 3 above (except to the extent permitted
by Section 3.5 thereof); (e) the Company, or a successor as contemplated in
Section 6.1 below, requires him to work in an office more than twenty-five (25)
miles from the location of his current principal executive office (except for
required travel on the Company’s business to an extent substantially consistent
with Executive’s business travel obligations); (f) the Company, or a successor
as contemplated in Section 6.1 below, terminates Anthony Piscitelli’s
employment without Cause, or Anthony Piscitelli terminates his employment for
Good Reason; and (g) the Company, or a successor as contemplated in Section 6.1
below, fails to obtain the assumption of, and agreement to perform, this
Agreement by a successor as contemplated in Section 6.1 below.  In order to terminate his employment under
this Section, Executive shall: (i) give the Company written notice of
termination under this Section (subject to and in accordance with Sections 5.10
and 6.2 below) within ninety (90) days of the most recent event(s) constituting
grounds for termination under this Section; and (ii) give the Company thirty
(30) days written notice (subject to and in accordance with Sections 5.10 and
6.2 below) of such termination, during which thirty (30) day period the Company
shall be afforded the opportunity to cure the deficiencies giving rise to such
termination.


 


5.7.  Benefits Upon Termination.  Except as otherwise provided in this
Agreement, in the event of termination of Executive’s employment under Sections
5.1 through 5.6 above, Executive’s entitlement to benefits under any Benefit
Plan (as defined in Section 3.5 above) shall be determined in accordance with
applicable law and the provisions of such Benefit Plan.


5.8.  Termination by Mutual
Consent. 
Notwithstanding any of the foregoing provisions of this Section 5, if,
at any time during the Term, the Parties by mutual consent decide to terminate
this Agreement, they may and shall do so by separate agreement setting forth
the terms and conditions of such termination.


5.9.  Withholding.  All payments required to be made by the
Company to Executive under Section 5 of this Agreement shall be subject to the
withholding of such amounts, if any, relating to tax and other payroll
deductions as must be withheld pursuant to any applicable law or regulation.


5.10.  Notice of Termination. 
Any purported termination of Executive’s employment by the Company for
any reason, or by Executive for any reason, shall be communicated by a written
“Notice of Termination” to the other Party. 
A “Notice of Termination” shall mean a dated notice that: (a) indicates
the specific termination provision in this Agreement relied on; (b) sets forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated; (c)
specifies a Date of Termination; and (d) is given in the manner specified in
Section 6.2.  “Date of Termination” shall
mean the later of: (i) the


 


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date
specified in the Notice of Termination required by this Section; and (ii) the
date Notice of Termination is deemed to have been duly given in accordance with
Section 6.2 of this Agreement.


6.  GENERAL PROVISIONS.


6.1.  Assignment.  The Company shall assign
this Agreement and its rights and obligations hereunder in whole, but not in
part, to any corporation or other entity with or into which the Company may
hereafter merge or consolidate or to which the Company may transfer all or
substantially all of its assets, if in any such case said corporation or other
entity shall by operation of law or expressly in writing assume all obligations
of the Company hereunder as fully as if it had been originally made a party
hereto; the Company may not otherwise assign this Agreement or its rights and
obligations hereunder.  Executive may not
assign or transfer this Agreement or any rights or obligations hereunder.


6.2.  Notice.  All Notices of Termination and other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:




	
  To the Company:

  	
   

  	
  American
  Defense Systems, Inc.

  
	
   

  	
   

  	
  230
  Duffy Ave., Unit C

  
	
   

  	
   

  	
  Hicksville,
  NY 11801

  
	
   

  	
   

  	
   

  
	
  To
  Executive:

  	
   

  	
  [INSERT
  APPLICABLE ADDRESS]

  






 


Either
Party may change the address to which Notices of Termination and other
communications provided for in this Agreement shall be sent to that Party, by
giving the other Party notice in the manner provided in this Section.


6.3.  Indemnification.  The Company shall indemnify Executive and
hold him harmless for any and all liabilities arising from the performance of
his duties under this Agreement and services for the Company, subject to and in
accordance with applicable law and any applicable indemnification provisions in
the Company’s Articles of Incorporation and/or Bylaws.


6.4.  Tax Treatment of Payments and/or
Benefits.  Each payment
made pursuant to the terms of this Agreement is intended as a separate payment
within the meaning of Code Section 409A and Department of Treasury regulations
and other interpretive guidance issued thereunder.  To the extent applicable and notwithstanding
any other provision in this Agreement, this Agreement and payments or benefits
hereunder shall be administered, operated and interpreted in accordance with
Code Section 409A and Department of Treasury regulations and other interpretive
guidance issued thereunder, including without limitation any such regulations
or other guidance that may be issued after the Effective Date of this
Agreement; provided, however, in the event that the Company determines that any
payments or benefits hereunder may be taxable to


 


 


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Executive under Code Section 409A and related
Department of Treasury guidance prior to the payment and/or delivery  of such amount, the Company may (i) adopt
such amendments to the Agreement that the Company reasonably and in good faith
determines necessary or appropriate to preserve the intended tax treatment of
the benefits provided under this Agreement and/or (ii) take such other actions,
including delaying the payment or delivery hereunder, as the Company determines
necessary or appropriate to comply with or exempt the payments or benefits from
the requirements of Code Section 409A.


 


6.5.  Amendment and Waiver.  No amendment or modification of this
Agreement shall be valid or binding upon the Parties unless made in writing and
signed by each of the Parties for that express purpose.


 


6.6.  Non-Waiver of Breach.  No failure by either Party to declare a
default due to any breach of any obligation under this Agreement by the other,
nor failure by either Party to act with regard thereto, shall be considered to
be a waiver of any such obligation, or of any future breach.


 


6.7.  Severability.  In the event that any provision or portion of
this Agreement, shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.


 


6.8.  Governing Law.  The validity and effect of this Agreement and
the rights and obligations of the Parties hereto shall be construed and
determined accordance with the law of the State of New York without regard to
its conflicts of laws or principles.


 


6.9.  Dispute Resolution.  Any controversy, dispute or claim arising out
of or relating to this Agreement or breach thereof shall first be resolved
through good faith negotiation between the Parties.  If the Parties are unsuccessful at resolving
the dispute through such negotiation, the Parties agree to attempt in good
faith to resolve the dispute by mediation in New York City, New York (or such
other location agreed upon between the Parties), administered by JAMS.  Either
Party may commence such mediation by providing the other Party (in accordance
with Section 6.2 above) and JAMS a written request for mediation, setting forth
the subject of the dispute and the relief requested.  The Parties covenant that they will cooperate
in good faith with JAMS and one another in selecting a mediator from JAMS panel
of neutrals and in scheduling and participating in the mediation
proceedings.  If the Parties are
unsuccessful at resolving the dispute through such mediation, the Parties agree
to final and binding arbitration in New York City, New York (or such other
location agreed upon between the Parties), administered by JAMS pursuant to its
Employment Arbitration Rules & Procedures (except insofar as they conflict
with the express provisions of this Section) and subject to JAMS Policy on
Employment Arbitration Minimum Standards of Procedural Fairness.  Either
Party initiating such arbitration must do so by filing a written demand for
arbitration (and giving the other Party notice in accordance with Section 6.2
above) at any time following the initial mediation session or 45 days after the
date of filing the written request for mediation, whichever occurs first.  The mediation may continue after the
commencement of arbitration if the Parties so agree.  Unless otherwise agreed by the Parties, the
mediator


 


 


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shall be
disqualified from serving as arbitrator. 
The arbitrator may, in the award, allocate all or part of the costs,
fees and expenses of the arbitration, including the arbitrator’s fees and the
prevailing Party’s attorneys’ fees. 
Judgment on the arbitration award may be entered in any court having
jurisdiction.  The provisions of this Section may be enforced by any court of
competent jurisdiction, and the Party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including attorneys’ fees, to be paid
by the Party against whom enforcement is ordered.


 


6.10.  Entire Agreement.  This Agreement contains all of the terms
agreed upon by the Company and Executive with respect to the subject matter
hereof and supersedes all prior agreements, arrangements and communications
between the Parties dealing with such subject matter, whether oral or written.


 


6.11.  Binding Effect.  This Agreement shall be binding upon and
shall inure to the benefit of the transferees, successors and assigns of the
Company, including any corporation or entity with which the Company may merge
or consolidate.


6.12.  Headings.  Numbers and titles to Sections hereof are for
information purposes only and, where inconsistent with the text, are to be
disregarded.


6.13.  Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which when
taken together, shall be and constitute one and the same instrument.


6.14.  Executive’s Warranties.  Executive expressly warrants that he has
carefully read and fully understands all the provisions of this Agreement and
is hereby advised by the Company to consult with an attorney of his own
choosing in deciding whether to sign this Agreement.


IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the date and year first written above.


 


 


American Defense Systems, Inc.


 


 




	
  By:

  	
  /s/ Anthony J. Piscitelli

  	
   

  	
  /s/ Gary Sidorsky

  	
   

  
	
   

  	
  Anthony J. Piscitelli

  	
   

  	
  Gary Sidorsky

  	
   

  
	
   

  	
  Chief Executive Officer

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  






 


 


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SCHEDULE
A


GARY
SIDORSKY EMPLOYMENT AGREEMENT


 


3.2.  Annual Bonuses.  For the 2007 fiscal year, Executive shall be
entitled to earn and be paid an annual bonus (“2007 Annual Bonus”) based on his
performance.  The Company shall
determine, reasonably and in good faith, the amount of the 2007 Annual
Bonus.  The 2007 Annual Bonus shall be
paid in cash not later than the ninetieth (90th) day following the
last day of the 2007 fiscal year and in a manner in accordance with the
Company’s regular payroll practices for executive employees.  Beginning with the 2008 fiscal year,
Executive shall be entitled to earn and be paid an annual bonus each fiscal
year of 1.25% of the increase in the Company’s EBITDA over the preceding fiscal
year (“Annual Bonus”).  (For example, in
2008 Executive would be entitled to 1.25% of the amount by which EBITDA for the
fiscal year ended in 2008 is greater than the FYE in 2007.)  The Annual Bonus, if earned, shall be paid in
cash within sixty (60) days following the date the Company’s auditors issue
their audit report on the Company’s financial statements for the fiscal year
with respect to which such Annual Bonus relates, and in any event not later
than one hundred (120) days after the last day of such fiscal year, and in a
manner in accordance with the Company’s regular payroll practices for executive
employees.  The payment of the Annual
Bonus shall be prorated for any partial fiscal year during the Term.  The term “EBITDA” means earnings before
interest income, interest expense, taxes, depreciation and amortization of the
Company’s consolidated businesses each as determined in accordance with U.S.
generally accepted accounting principles. 
If otherwise eligible, Executive: (a) need not be employed by the
Company at the time the 2007 Annual Bonus and/or the Annual Bonus is/are
calculated and/or paid out in order to receive the 2007 Annual Bonus or Annual
Bonus, as applicable; and (b) is entitled to a pro-rated portion of 2007 Annual
Bonus or the Annual Bonus, as applicable, if his employment terminates for any
reason before the end of the applicable fiscal year.


 


3.5 Benefits.


 


3.5.1.  Vacation.  Executive shall be entitled to two (2) weeks
of paid vacation each calendar year.  In
the event that the Company terminates Executive’s employment without Cause or
Executive terminates his employment for Good Reason, the Company shall pay
Executive for all unused vacation for the remainder of the Company’s then
current fiscal year.


 


3.5.2.  D&O Liability
Insurance.  The Company shall provide Executive with
directors’ and officers’ liability insurance coverage in an amount that the
Company, reasonably and in good faith, determines to be appropriate and
affordable.  After the expiration of
Executive’s employment and/or the termination of this Agreement, the Company
shall provide Executive with directors’ and officers’ liability insurance
coverage in an amount and for a period of time that the Company, reasonably and
in good faith, determines to be appropriate and affordable.


 


 


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3.5.3.  Life Insurance.  The Company shall provide Executive with life
insurance in accordance with the terms of any applicable life insurance plan
established by the Company.


 


3.5.4.  Long-Term Disability Insurance.  The Company shall provide Executive with
long-term disability insurance in accordance with the terms of any applicable
long-term disability plan established by the Company.


 


 


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