EXHIBIT 10.1
EXECUTION VERSION
BONUS AGREEMENT
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This BONUS AGREEMENT (this "Agreement") is entered into as of this 14th
day of September, 2007, by and between Indalex Holdings Finance, Inc., a
Delaware corporation (the "Company") and Xxxxxxx Xxxxxx ("Employee"), on the
following terms and conditions:
1. The Company shall pay Employee a cash bonus (payable as set forth herein)
(the "Bonus") in an aggregate amount up to $2,969,584.29. Employee agrees
and acknowledges that if Employee's employment by the Company or its
subsidiaries is terminated for any reason, other than by the Company
without Cause (as defined in the Company's 2006 Stock Option Plan (the
"Plan")), or Employee breaches or violates (as determined in the sole
discretion of the Company's Board of Directors) any of the terms or
provisions of this Agreement, any grant agreement whereby the Company
granted (or in the future grants) options or other securities to Employee
(each a "Grant Agreement"), or any employment, bonus, option grant or other
agreement between Employee and the Company or its affiliates, Employee will
not be entitled to receive the Bonus.
2. Subject to the terms hereof:
(a) As soon as practicable after the occurrence of a Change in Control (as
defined below), but in no event later than 60 days following the
Change in Control, and provided that Employee is employed by the
Company or its subsidiaries as of the date of such Change of Control,
the Company shall pay Employee an amount equal to $2,969,584.29, less
the amount, if any, by which $4,227,500 is greater than the product of
(A) the fair market value of a share the Company's common stock (the
"Company Common Stock") on the date of the Change in Control, as
determined by the Company's Board of Directors in its sole discretion,
multiplied by (B) 38,000 (the amount resulting from this calculation,
the "Bonus Amount").
(b) In the event (i) Employee's employment by the Company is terminated
without Cause and (ii) as of the date of such termination (the
"Termination Date"), Employee holds options to acquire Company Common
Stock which are vested (in accordance with the terms of the Plan and
each applicable Grant Agreement) (such vested options on the
Termination Date, the "Vested Options"), then as soon as practicable
after the occurrence of a Change in Control, but in no event later
than 60 days following the Change in Control, the Company shall pay
Employee an amount equal to the product of (A) the Bonus Amount,
multiplied by (B) a fraction, the numerator of which is the Vested
Options and the denominator of which is the total number of options to
acquire Company Common Stock held by Employee as of the Termination
Date.
(c) In the event the Bonus Amount is less than or equal to $0, no amount
shall be payable hereunder by either party hereto.
(d) For purposes of this Agreement, "Change in Control" shall mean (i) any
consolidation, merger or other transaction in which the Company is not
the surviving entity or which results in the acquisition of all or
substantially all of the Company's outstanding shares of common stock
by a single person or entity or by a group of persons or entities
acting in concert or (ii) any sale or transfer of all or substantially
all of the Company's assets (excluding, however, for this purpose any
real estate "sale-lease back" transaction); provided, however, that
the term "Change in Control" shall not include transactions either (x)
with affiliates of the Company or Sun Capital Partners, Inc. ("Sun")
(as determined by the Company's Board of Directors in its sole
discretion) or (y) pursuant to which more than fifty percent (50%) of
the shares of voting stock of the surviving or acquiring entity is
owned and/or controlled (by agreement or otherwise), directly or
indirectly, by Sun or its affiliates; provided, further, that a
transaction shall not constitute a Change in Control unless the
transaction also constitutes a change in the ownership or effective
control of the Company, or in the ownership of a substantial portion
of the Company's assets, within the meaning of Section
409A(a)(2)(A)(v) of the Code and the regulations or other published
guidance (including, without limitation, Internal Revenue Service
Notice 2005-1 and Proposed Regulation Section 1.409A-3) promulgated
thereunder.
3. The permitted payment events specified in Section 2 are intended to comply
with the provisions of Section 409A(a)(2) of the Internal Revenue Code of
1986, as amended (the "Code"). The Company may make any changes to this
Agreement it determines in its sole discretion are necessary to comply with
the provisions of Code Section 409A and any final, proposed, or temporary
regulations or any other guidance issued thereunder without the consent of
Employee.
4. The Company may withhold from any amounts payable to Employee under this
Agreement such foreign, federal, state, local and other taxes as may be
required to be withheld pursuant to any applicable law or regulation.
5. Employee agrees to abide by and hereby reaffirms the covenants and
agreements set forth in this Agreement, any grant agreement whereby the
Company granted (or in the future grants) options or other securities to
Employee, or any employment, bonus, option grant or other agreement between
Employee and the Company or its affiliates; and agrees that this Agreement
constitutes additional consideration in support of such covenants and
agreements.
6. This Agreement is legally binding on the parties and their respective
successors and assigns. It may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument. It constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof
(including, without limitation, with respect to any bonuses payable in
connection with the July 18, 2006, $1.52 per share dividend described in
the Company's annual report on Form 10K for the fiscal year ended December
31, 2006), and supersedes and preempts any prior written or oral agreements
understandings, or representations. Except as set forth herein, the terms
and provisions of this Agreement cannot be terminated, modified or amended
except in a writing signed by the party against whom enforcement is sought.
This Agreement shall be governed by, and construed and, except as set forth
in the second to last sentence of this paragraph, interpreted in accordance
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with, the laws of the State of Delaware, and any suit, action or proceeding
arising out of or relating to this Agreement shall be commenced and
maintained in any court of competent subject matter jurisdiction located in
Wilmington, Delaware. In any suit, action or proceeding arising out of or
in connection with this Agreement, the prevailing party shall be entitled
to recover from the other party, upon final judgment on the merits, all
attorneys' fees and disbursements actually billed to such party, including
all such fees and disbursements incurred at trial, during any appeal or
during negotiations. None of Employee's rights under this Agreement may be
transferred, assigned, pledged or encumbered. Any ambiguity with respect to
any term of this Agreement or any interpretation thereof shall be resolved
in the sole discretion of the Company's Board of Directors. EACH OF THE
PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF,
CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED
HEREBY, OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.
7. Employee agrees and acknowledges that nothing in this Agreement shall
confer upon Employee any right to continue in the employ of the Company or
any of its subsidiaries or affiliates, or interfere in any way with any
right of the Company or any of its subsidiaries or affiliates to terminate
such employment at any time for any reason whatsoever (whether for cause or
without cause) without liability to the Company or any of its subsidiaries
or affiliates.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Bonus Agreement as of
the date first above written.
Indalex Holdings Finance, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
/s/ Xxxxxxx X. X. Xxxxxx
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Xxxxxxx Xxxxxx
Signature Page to Bonus Agreement
