EXHIBIT 10.43
AMENDMENT
TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDMENT to AMENDED AND RESTATED EMPLOYMENT AGREEMENT made as of
the 30th day of March, 2000 by and between Advanced Technical Products, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive is currently employed by the Company pursuant
to that certain Amended and Restated Employment Agreement dated as of November
1, 1997 (the "Employment Agreement"); and
WHEREAS, the Company has entered into that certain January 2000
Agreement and Plan of Merger dated January 27, 2000 with ATP Holdings Inc. and
ATP Acquisition Corp. (the "Merger Agreement") pursuant to which a merger of ATP
Acquisition Corp. with and into the Company (the "Merger") is contemplated, and
pursuant to the terms of the Merger Agreement each of the Company and the
Executive have agreed that Section 4.3 of the Employment Agreement will be
amended, effective only when, and if, the Merger is consummated; and
WHEREAS, effective as of the date hereof Xxxxx X. Xxxxxx has
resigned as the Company's President and Chief Executive Officer and the Company
wishes to employ the Executive, and the Executive is willing to serve, as the
Company's President and Chief Executive Officer; and
WHEREAS, the Company and the Executive mutually desire to amend the
terms of the Employment Agreement at this time in order to, among other things,
incorporate the terms of such additional employment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. AMENDMENT. Pursuant to Section 7.4 of the Employment Agreement, the
Employment Agreement is hereby amended and superceded as follows:
(a) EMPLOYMENT DUTIES. Section 1.1 is hereby amended by deleting the
third sentence in said Section 1.1 in its entirety and replacing such sentence
with the following:
"During the Term, the Executive shall serve in the capacity of
President, Chief Executive Officer and Chief Financial Officer of the
Company, and shall also serve in those offices and directorships of
subsidiary corporations or entities of the Company to which he may from time
to time be appointed or elected; provided, however, that it is the
understanding of the Company and the Executive that the parties intend to
mutually agree upon, and that the Company's Board will appoint, a person
other than the Executive to serve as the Company's Chief Financial Officer in
the future and at such time the Executive shall resign from the office of
Chief Financial Officer without effect to this Agreement, as amended, and
without giving rise to an event which could be deemed a constructive
termination of the Executive's employment."
(b) ANNUAL SALARY. Section 2.1 is hereby amended by deleting the
first sentence of said Section 2.1 in its entirety and replacing such sentence
with the following:
"The Company shall pay to the Executive an annual salary at a
rate of not less than three hundred twenty five thousand and no/100 dollars
($325,000.00) per year (the "ANNUAL SALARY"), subject to increase at the sole
discretion of the Board, provided, however, that the Annual Salary shall be
increased effective as of each Renewal Date of each year during the Term at a
minimum by a percentage equal to the percentage increase in the Consumer
Price Index (Income) for the previous fiscal year; provided, however that
from February 1, 2000 through the earlier of (i) the date on which the
Company secures substantial additional financing or (ii) the date on which
the Company is sold or otherwise acquired, including, without limitation the
consummation of the Merger (a "Payment Event") the Executive shall be paid
out only that pro rata amount of his Annual Salary based on $275,000 per year
and the remaining pro rata amount based on $50,000 per year shall be accrued
by the Company and paid to the Executive after consummation of a Payment
Event ."
(c) TERMINATION WITHOUT CAUSE. Section 4.3 is hereby amended by
deleting the second sentence of said Section 4.3 in its entirety and replacing
such sentence with the following:
"If the Executive is terminated during the Term without Cause
(including any termination which is deemed to be a constructive termination
without Cause under Section 4.6 hereof), the Company's obligation to the
Executive shall be limited solely to (i) the vesting of all stock options
granted to the Executive by the Company and (ii) the payment, at the times
granted and upon the terms provided for herein, of the Executive's Annual
Salary for a period of 18 months, based on the Annual Salary of the Executive
in effect on the date of termination (or, if the Company has reduced the
Executive's Annual Salary in breach of this Agreement, the Executive's Annual
Salary before such reduction), together with all unpaid Incentive Bonus and
Benefits awarded or accrued up to the date of termination; provided, however
that in the event of a sale of the Company other than the Merger, which sale
is consummated or agreed pursuant to a definitive agreement prior to July 30,
2000 then the 18 month period specified herein shall be 36 months."
As the Executive and the Company agreed in the Merger Agreement, Section 4.3
shall be further amended as provided in Section 5.12 in the Merger Agreement in
the event that the Merger is consummated.
2. PUBLIC ANNOUNCEMENTS. The Company and the Executive will consult with
each other before issuing, and provide each other the opportunity to review and
comment upon, any press release or other public statements with respect to this
Amendment or the termination of the Executive's employment by the Company and
shall not issue any such press release or make any such public statement prior
to such consultation.
3. ENTIRE AGREEMENT; NO OTHER MODIFICATIONS; SUCCESSORS. The Employment
Agreement, as amended by the Merger Agreement and further amended hereby,
contains the entire agreement between the parties with respect to the subject
matter thereof and hereof and supersedes all prior agreements, written or oral,
with respect thereto. Except as amended hereby, the terms and conditions of the
Employment Agreement, as amended by the Merger Agreement, shall continue in full
force and effect and are hereby in all respects ratified and confirmed. The
obligations of the Company contained herein shall be binding on its successors
and assigns, including without limitation, the surviving entity upon
consummation of the Merger.
4. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Delaware without reference to the conflicts of law
principles therein.
IN WITNESS WHEREOF, this Amendment to the Amended and Restated
Employment Agreement has been executed as of the date and year first above
written.
THE COMPANY:
ADVANCED TECHNICAL PRODUCTS, INC.
By: _________________________________
Name:
Title:
THE EXECUTIVE:
_____________________________________
XXXXXXX X. XXXXXX
