EXHIBIT 10.50
FIRST AMENDMENT
TO THE
POST-MERGER STOCK TRANSFER AND REPURCHASE AGREEMENT
This First Amendment to the Post-Merger Stock Transfer and Repurchase
Agreement (the "Agreement") is made and entered into as of April 12, 2004, by
and among Avondale Incorporated, a Delaware corporation (as successor to Xxxxxx
Xxxxxx Xxxxx, Inc.) (the "Company"), Xxxx X. Xxxxxxx, Xx., an individual
resident of the State of Georgia (the "Shareholder"), and G. Xxxxxxx Xxxxxx, an
individual resident of the State of Georgia ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Avondale Xxxxx, Inc., an Alabama corporation ("Avondale"), is
a wholly owned subsidiary of the Company;
WHEREAS, the Shareholder is serving as an employee and officer of
Avondale;
WHEREAS, the Shareholder owns 100,949 shares of Class A Common Stock,
par value $.01 per share, of the Company;
WHEREAS, the Company, the Shareholder, Xxxxxx and certain other
shareholders (collectively with Xxxxxx, the "Other Shareholders") entered into
that certain Post-Merger Stock Transfer and Repurchase Agreement dated August,
1993 (the "Stock Transfer and Repurchase Agreement"), which created and imposed
certain rights and restrictions with respect to the Class A Common Stock owned
by the Shareholder;
WHEREAS, Xxxxxx is the only one of the Other Shareholders that remains
bound by the Stock Transfer and Repurchase Agreement;
WHEREAS, the Company, the Shareholder and Xxxxxx desire to amend the
Stock Transfer and Repurchase Agreement as set forth herein;
WHEREAS, the Company desires to effect certain changes to the terms of
the Stock Transfer and Repurchase Agreement and implement certain related
compensation arrangements in order to both recognize the extraordinary
performance of the Shareholder as the Vice Chairman and Chief Financial Officer
of Avondale and create appropriate incentives for the Shareholder to remain
employed by the Company; and
WHEREAS, in recognition of certain benefits accruing to the Shareholder
under this Agreement, the Shareholder has agreed to surrender certain rights
relating to his ability to put his shares of Class A Common Stock to the
Company.
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the parties hereto hereby agree as follows:
1. Definitions. Terms used in this Agreement and not otherwise
defined herein shall have the same meaning as given to them in the Stock
Transfer and Repurchase Agreement.
2. Amendment to Section 3.4. Section 3.4 of the Stock Transfer
and Repurchase Agreement is hereby deleted in its entirety and replaced with the
following:
3.4. After August 31, 2007 (the "Put Date"), provided that no Event of
Deferral exists and that the Shareholder has ceased to be employed by
the Company or any of its subsidiaries, the Shareholder shall have the
right to sell to the Company and the Company shall be obligated to
purchase all of the Shares held at such time by the Shareholder. The
purchase price of the Shares purchased by the Company pursuant to this
Section 3.4 shall be determined pursuant to the terms set forth in
Section 4 hereof, with the Put Date being substituted for the date of
the Shareholder's death, and the terms of payment and closing of such
purchase shall be governed by the terms of Sections 4.3 and 6 hereof.
If an Event of Deferral exists, then the Company, upon written notice
to the Shareholder within 60 days after the Shareholder exercises his
right to sell Shares hereunder, shall have the right to defer the
repurchase of any Shares pursuant to this Section 3.4 until no Event of
Deferral exists. The date of determination of the repurchase price for
such Shares shall be established pursuant to Section 4.4 hereof.
3. Amendment to Section 4.1(b). The second sentence of Section
4.1(b) of the Stock Purchase and Transfer Agreement is hereby deleted in its
entirety and replaced with the following:
The "EBITD Value" will be the product of 3.25, multiplied by an amount
equal to (a) the Company's aggregate consolidated operating earnings
before interest, income taxes and depreciation ("EBITD") (excluding
from such earnings the one time charge recorded to recognize
immediately the accumulated post-retirement benefit obligation in
accordance with Statement of Financial Accounting Standards No. 106
"Employers' Accounting for Postretirement Benefits other than Pensions"
("SFAS 106")) for the 10 fiscal quarters immediately preceding the
death of the Shareholder divided by (b) 2.5.
4. Amendment to Section 9. Section 9 of the Stock Purchase and
Transfer Agreement is hereby deleted and replaced in its entirety with the
following:
SECTION 9. TERMINATION. This Agreement shall terminate upon the
earliest to occur of any of the following events or dates:
(a) bankruptcy or receivership of the Company;
(b) the purchase by the Company or the Other Shareholders of all
of the Shares;
(c) the completion by the Company (or any shareholder or
shareholders thereof) of an initial public offering of the
Class A Common Stock; or
(d) July 2, 2010.
5. Notice to the Shareholder. The address for the giving of
notices to the Shareholder pursuant to Section 10.3 of the Stock Transfer and
Repurchase Agreement shall be changed to: 0000 Xxxxxxx Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000.
6. Bonus Payments.
(a) The Company shall cause Avondale to pay the
Shareholder a bonus of $300,000, less applicable
withholdings, upon the execution of this Agreement by
all of the parties hereto.
(b) If the Shareholder is employed by the Company or any
of its subsidiaries on the first business day of the
2005 fiscal year of the Company, the Company shall
cause Avondale to pay the Shareholder a bonus of
$200,000, less applicable withholdings, on such date.
(c) If the Shareholder is employed by the Company or any
of its subsidiaries on the first business day of the
2006 fiscal year of the Company, the Company shall
cause Avondale to pay the Shareholder a bonus of
$200,000, less applicable withholdings, on such date.
(d) If the Shareholder is employed by the Company or any
of its subsidiaries on the first business day of the
2007 fiscal year of the Company, the Company shall
cause Avondale to pay the Shareholder a bonus of
$200,000, less applicable withholdings, on such date.
(e) All payments made to the Shareholder pursuant to this
Section 6 shall be made in accordance with Avondale's
standard payroll procedures.
7. No Other Modifications. Except as expressly set forth in this
Agreement, the terms and conditions of the Stock Transfer and Repurchase
Agreement shall continue in full force and effect.
8. At-Will Employment. Nothing in this Agreement is intended to
alter the Shareholder's status as an "at will" employee of the Company.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
10. Headings. The headings in this Agreement are for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto on the date first written above.
AVONDALE INCORPORATED
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G. Xxxxxxx Xxxxxx
Chairman, President and Chief
Executive Officer
SHAREHOLDER
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Xxxx X. Xxxxxxx, Xx.
G. XXXXXXX XXXXXX
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G. Xxxxxxx Xxxxxx
