Exhibit 10.2


 


AMENDMENT TO EMPLOYMENT AGREEMENT


 


THIS
AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is made effective as of January 9,
2009 (the “Effective Date”) by and between Gary Sidorsky (“Sidorsky” or the “Executive”)
and American Defense Systems, Inc. (“ADSI” or the “Company”).


 


WHEREAS,
ADSI and Sidorsky have previously entered into an employment agreement dated January 1,
2007 (the “Employment Agreement”); and


 


WHEREAS,
ADSI and Sidorsky desire to amend the Employment Agreement between the parties.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, ADSI
and Sidorsky hereby agree as follows:


 


1.                                       Section 3.2
of the Employment Agreement (Annual Bonuses)
as set forth in Schedule A, is hereby amended and restated as follows:


 


Executive shall be entitled to earn
and be paid an annual bonus each fiscal year of 2.5% of the increase in the
Company’s EBITDA over the preceding year (“Annual Bonus”).  (For example, in 2009 Executive would be
entitled to 2.5% of the amount by which EBITDA for the fiscal year ended in
2009 is greater than the FYE in 2008). 
The Annual Bonus, if earned, shall be paid in cash after 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 seventy-four (74) 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 term “EBITDA” means earnings before interest income, interest
expenses, 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 need not be employed by the Company at the time the Annual
Bonus is calculated and/or paid out in order to receive the Annual Bonus, as applicable,
if his employment terminates for any reason before the end of the applicable
fiscal year.


 


2.                                       Section 3.5.1
of the Employment Agreement (Vacation) as
set forth in Schedule A, is hereby amended and restated as follows:


 


Executive
shall be entitled to four (4) 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 for all unused vacation for
the remainder of the Company’s then current fiscal year.


 


3.                                       Section 6.4
of the Employment Agreement (Tax Treatment of Payments
or Benefits) is hereby amended and restated as follows:


 


(a)                                  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,
including but not limited to a Change of Control as set forth in Section 5.4,
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 regulation 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 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.


 


(b)                                 If
Executive is subject to a federal excise tax on all or any part of any payment
made pursuant to this Agreement under Code Section 4999 (or any successor
thereto), the Company shall pay Executive an additional amount sufficient,
considering the state and federal income and other taxes that Executive will be
required to pay with respect to such additional amount, to provide Executive on
an after-tax basis an amount equal to the amounts to be paid to Executive under
this Agreement without regard to such excise tax.


 


4.                                       Confirmation
of the Employment Agreement.  Except as
amended hereby, all of the terms of the Employment Agreement shall remain and
continue in full force and effect and are hereby confirmed in all respects, and
all references to the Employment Agreement and the Amendment To Employment
Agreement shall be deemed to refer to the Employment Agreement as amended
hereby.


 


IN
WITNESS WHEREOF, the parties have executed this Amendment effective as of the
date set forth above.


 


	
   

  	
  American Defense
  Systems, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
         Gary
  Sidorsky

  



 


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