BONUS AGREEMENT
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EXECUTION VERSION
This BONUS AGREEMENT (this "Agreement") is entered into as of this 14th of September, 2007, by and between Indalex Holdings Finance, Inc., a Delaware corporation (the "Company") and Xxxxx Xxxx ("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 $156,293.91.
Employee agrees and acknowledges that if Employee is no longer an employee, for whatever reason, of the Company or its subsidiaries, 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, 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, the Company shall pay
Employee an amount equal to $156,293.91, less the amount, if any, by which $222,500 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) 2,000 (the amount resulting from this calculation, the "Bonus Amount").
- (b)
- In
the event the Bonus Amount is less than or equal to $0, no amount shall be payable hereunder by either party hereto.
- (c)
- 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 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.
* * * * *
2
IN WITNESS WHEREOF, the parties have executed this Bonus Agreement as of the date first above written.
| Indalex Holdings Finance, Inc. | |||
By: |
/s/ Xxx Xxxxxx Name: Title: |
||
/s/ Xxxxx Xxxx Xxxxx Xxxx |
|||
Signature Page to Bonus Agreement
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