**Exhibit 10.26**

 

**EXHIBIT A**

**EXECUTIVE SEVERANCE AGREEMENT**

 

THIS AGREEMENT is entered into this     dayof                                         ,2005 by and between Euramax International, Inc., a Delaware corporation,and J. David Smith (“Executive”).

 

WITNESSETH

 

WHEREAS, the Company considers the establishment andmaintenance of a sound and vital management to be essential to protecting andenhancing the best interests of the Company and its stockholders; and

 

WHEREAS, Executive currently serves as Chairman of theBoard and, pursuant to an Employment Agreement between Executive and theCompany dated as of October 1, 1999 as amended as of April 15, 2003(collectively “the “Employment Agreement”), serves as Chief Executive Officerand President of the Company;

 

WHEREAS, the Company recognizes that the possibilityof a Change of Control may arise and that such possibility, and the uncertaintyand questions which it may raise among management, may result in the departureor distraction of management personnel to the detriment of the Company and itsstockholders; and

 

WHEREAS, the Board (as defined in Section 1) hasdetermined that it is in the best interests of the Company and its stockholdersto secure Executive’s continued services and to ensure Executive’s continuedand undivided dedication to his duties; and

 

WHEREAS, the Employment Agreement contains certainprovisions relating to payments to Executive upon a “Change of Control” asdefined therein and other matters relating to a Change of Control;

 

WHEREAS, the parties hereto desire to amend, by thisAgreement and effective upon the date hereof, the definition of “Change ofControl” contained in the Employment Agreement; and

 

WHEREAS, upon the occurrence of a Change of Control,as defined herein, the parties hereto desire that the terms expressly providedherein relating to Executive’s rights after a Change of Control upon certainterminations of his employment supersede similar provisions in his EmploymentAgreement as provided herein; and

 

WHEREAS, the Board has authorized the Company to enterinto this Agreement.

 

NOW, THEREFORE, for and in consideration of thepremises and the mutual covenants and agreements herein contained, the Companyand Executive hereby agree as follows:

 

1.             Definitions:As used in this Agreement, the following terms shall have the respectivemeanings set forth below:

 

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(a)           “Affiliate”means, with respect to any Person, any other Person who directly or indirectly,through one or more intermediaries, controls, is controlled by, or is undercommon control with, such Person including, without limitation, any employee ofsuch Person, The term “control” means the possession, directly or indirectly,of the power to direct or cause the direction of the management and policies ofa Person, whether through the ownership of voting securities or other ownershipinterests, by contract or otherwise, and the terms “controlled” and “controlling”have meanings correlative thereto.

 

(b)           “Board”means the Board of Directors of the Company.

 

(c)           “BusinessDay” means any day other than a Saturday or Sunday or a day on which commercialbanks are required or authorized to close in New York, New York.

 

(d)           “Cause”means (i) conviction of the Executive for a felony, a crime involvingmoral turpitude (excluding in each case vehicular offenses) or other act orwillful omission involving dishonesty or fraud with respect to any member ofthe Company Group, in each case, which causes material harm to the standing andreputation of any member of the Company Group and after written notice toExecutive or (ii) other than by reason of death, Permanent Disability ortermination of employment by Executive based on the occurrence of an eventconstituting Good Reason, Executive’s continued failure to perform his duties(consistent with those duties previously performed by Executive in his capacityas an executive officer of the Company and those of an executive officer in anorganization of similar size and structure as the Company) to the Companyand/or deliberate failure or deliberate refusal by Executive to comply with areasonable written directive of the Board or the Chief Executive Officer of theCompany which is consistent with the method and manner of conducting thebusiness of the Company as it is now being conducted, after written notice and,if susceptible to remedy or cure is not cured or remedied and continues forfifteen (15) Business Days after the Board has given written notice to theExecutive specifying in reasonable detail the manner in which Executive has continuedto fail to perform his duties or refused to comply with such reasonabledirective and after the Executive has been afforded an opportunity to be heardby the Board in respect thereto. The Company must notify Executive of any eventconstituting Cause within ninety (90) calendar days following the Company’sknowledge of its existence or such event shall not constitute Cause under thisAgreement.

 

(e)           “Changeof Control” means, in a single transaction or a series of related transactions,the consummation within the term of this Agreement set forth in Section 6hereof, of any of the following:

 

(1)           amajority of the outstanding voting power of the Company shall have beenacquired or otherwise become beneficially owned by any Person (other than theExisting Owner Group, Company, any other member of the Company Group, or anyAffiliate of any member of the Company Group) or any two or more Persons actingas a partnership, limited partnership, syndicate or other group, entity orassociation acting in concert for the purpose of voting, acquiring, holding ordisposing of voting stock of the Company (the “Company Voting Securities”); or

 

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(2)           thereshall have occurred:

 

(A)          amerger or consolidation of the Company with or into another corporation, otherthan (i) a merger or consolidation with any other member of the CompanyGroup or (ii) a merger or consolidation in which the holders of CompanyVoting Securities immediately prior to the merger as a class hold immediatelyafter the merger at least a majority of all outstanding voting power of thesurviving or resulting corporation or its parent; or

 

(B)           astatutory exchange of shares of one or more classes or series of outstandingCompany Voting Securities for cash, securities or other property, other than anexchange in which the holders of Company Voting Securities immediately prior tothe exchange as a class hold immediately after the exchange at least a majorityof all outstanding voting power of the entity with which the Company VotingSecurities are being exchanged; or

 

(C)           thesale or other disposition of more than 80% of the consolidated assets of theCompany and its Subsidiaries (based on the net book value of the consolidatedassets of the Company and its Subsidiaries in the most recent audited financialstatements of the Company), in one transaction or a series of transactions,other than a sale or disposition in which the holders of Company VotingSecurities immediately prior to the sale or disposition as a class holdimmediately after the sale or disposition at least a majority of alloutstanding voting power of the entity to which such assets of the Company arebeing sold.

 

Notwithstanding anything in this Agreement to thecontrary, if Executive’s employment is terminated prior to a Change of Control,and Executive reasonably demonstrates that such termination was at the requestor suggestion of a third party who has indicated an intention or taken stepsreasonably calculated to effect a Change of Control (a “Third Party”) and aChange of Control involving such Third Party occurs, then for all purposes ofthis Agreement, a “Change of Control” shall be deemed to have occurred and thedate of a Change of Control shall mean the date immediately prior to the dateof such termination of employment. The foregoing definition of “Change ofControl” hereby amends and supersedes the definition of “Change of Control”contained in Section 1.1 of the Employment Agreement.

 

(f)            “Company”means Euramax International, Inc., a Delaware corporation.

 

(g)           “CompanyGroup” means, collectively, the Company, its Subsidiaries and their respectivesuccessors and assigns.

 

(h)           “Dateof Termination” means (1) the effective date on which Executive’semployment by the Company terminates as specified in a prior written notice bythe Company or Executive, as the case may be, to the other, delivered pursuantto Section 9, or (2) if Executive’s employment by the Companyterminates by reason of death, the date of death of Executive.

 

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(i)            “ExistingOwner Group” means Citigroup Venture Capital Equity Partners, L.P., the currentexecutive officers of the Company and its Subsidiaries and any combination ofthe foregoing and their Affiliates.

 

(j)            “GoodReason” means the occurrence of any of the following events after a Change ofControl, without Executive’s express written consent:

 

(1)           theassignment to Executive of any duties or responsibilities inconsistent in anymaterial respect with Executive’s position(s), duties, responsibilities orstatus with the Company or any other member of the Company Group immediatelyprior to such Change of Control (including any material diminution of hisduties, responsibilities or authority and including without limitation, theExecutive ceasing to serve as the sole Chief Executive Officer of the Company);

 

(2)           areduction in Executive’s rate of annual base salary or annual bonus opportunityas in effect immediately prior to such Change of Control or failure to promptlypay him any such compensation;

 

(3)           anyrequirement that Executive (i) be based anywhere more than twenty-five(25) miles from the facility where Executive is located at the time of theChange of Control or (ii) travel on Company business to an extent thatrequires extended, overnight travel which is substantially greater than thetravel obligations of Executive immediately prior to such Change of Control; or

 

(4)           thefailure of the Company or any other member of the Company Group to continue tomake available to Executive a package of benefits including employee benefitplans, welfare benefits, fringe benefits, vacation and sick pay plans which aresubstantially equivalent, in the aggregate, to those plans in which Executiveis participating immediately prior to such Change of Control.

 

Any event or condition described in this Section 1(j)(1) through(4) which occurs prior to a Change of Control, but was at the request orsuggestion of a Third Party who effectuates a Change of Control, shallconstitute Good Reason following a Change of Control for purposes of thisAgreement notwithstanding that it occurred prior to the Change of Control, andany termination of employment by Executive for such Good Reason in accordancewith this Agreement after the date hereof, whether prior to or after a Changeof Control, shall be deemed to have occurred during the Termination Period. Anaction taken in good faith and which is remedied by the Company within fifteen(15) Business Days after receipt of notice thereof given by Executive shall notconstitute Good Reason. Executive must provide notice of termination ofemployment within ninety (90) calendar days of Executive’s knowledge of anevent constituting Good Reason or such event shall not constitute Good Reasonunder this Agreement.

 

(k)           “NonqualifyingTermination” means a termination of Executive’s employment (1) by theCompany for Cause, (2) by Executive for any reason other than Good

 

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Reason, (3) as aresult of Executive’s death, or (4) by the Company due to Executive’sPermanent Disability.

 

(l)            “PermanentDisability” means Executive is unable to perform, in the written opinion of amedical doctor mutually agreed to by the Company and by the Executive or hislegal representative (and if the Company and Executive are unable to agree upona medical doctor, a third doctor selected by the doctor selected by the Companyand the doctor selected by Executive or his legal representative), by reason ofphysical or mental incapacity, his duties or obligations under this Agreement,for a period of one hundred twenty (120) consecutive calendar days or a totalperiod of two hundred ten (210) calendar days in any three hundred sixty (360)calendar day period.

 

(m)          “Person”means an individual, a partnership, a corporation, an association, a jointstock company, a limited liability company, a trust, a joint venture, anunincorporated organization, a governmental entity, or any department, agencyor political subdivision thereof, or any other entity.

 

(n)           “Subsidiary”means, with respect to any Person, any corporation, partnership, association orother business entity of which (i) if a corporation, a majority of thetotal voting power of shares of stock entitled (without regard to theoccurrence of any contingency) to vote in the election of directors, managersor trustees thereof is at the time owned or controlled, directly or indirectly,by that Person or one or more of the other Subsidiaries of that Person or acombination thereof, or (ii) if a partnership, association or otherbusiness entity, a majority of the partnership or other similar ownershipinterest thereof is at the time owned or controlled, directly or indirectly, byany Person or one or more Subsidiaries of that Person or a combinationthereof.  For purposes hereof, a Personor Persons shall be deemed to have a majority ownership interest in apartnership, association or other business entity if such Person or Personsshall be allocated a majority of partnership, association or other businessentity gains or losses or shall be or control the managing director or generalpartner of such partnership, association or other business entity.

 

(o)           “TerminationPeriod” means the period of time beginning with a Change of Control and endingon the second anniversary of the effective date of such Change of Control.

 

2.             Effectof Change of Control.  If there is aChange of Control, as defined in this Agreement, during the term of thisAgreement set forth in Section 6 hereof, (a) the Employment Agreementshall automatically be amended, without any further action by the partieshereto, effective upon the Change of Control to delete Sections 2.4(i), 2.5,2.6 and 2.7 of the Employment Agreement in their entirety and to replace thoseSections with Sections 3, 4 and 14 of this Agreement in lieu thereof, (b) thedefined terms used herein, with the definitions provided herein, will replaceand supersede the defined terms and the corresponding definitions contained inthe Employment Agreement to the extent such terms relate to the subject matterof this Agreement, (c) the definition of “Nonqualifying Termination”,contained herein, will define those events upon which Executive will not beentitled to the payments upon a Change of Control in lieu of any similarprovision contained in the Employment Agreement and (d) the

 

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definition of “TerminationPeriod”, contained herein, will define the period after a Change of Control inwhich Executive is entitled to payments hereunder upon certain terminations ofhis employment.

 

3.             PaymentsUpon Termination of Employment.  Ifduring the Termination Period the employment of Executive shall terminate,other than by reason of a Nonqualifying Termination, and Executive agrees uponsuch termination to execute a release, in the same form as attached hereto as Exhibit A,with respect to all tort and contract claims, as well as claims brought underall applicable federal, state or local statutes, laws, regulations or ordinances,then the Company shall pay to Executive (or Executive’s beneficiary or estate)within thirty (30) calendar days after the Company’s receipt of the signedrelease (and upon the expiration of any revocation rights in the release), ascompensation for services rendered to the Company, a lump-sum cash amount equalto the sum of:

 

(a)           Executive’sbase salary through the Date of Termination and any unpaid bonus for the fiscalyear ending prior to the Date of Termination to the extent not theretofore paid;

 

(b)           Aprorata portion of Executive’s annual bonus in an amount atleast equal to: (i) the greater of (A) 60% (or such higher percentageas shall then be applicable to Executive pursuant to the Euramax IncentiveBonus Plan (such plan being the “Bonus Plan” and such higher percentage beingthe “Higher Percentage”) for the fiscal year in which the Change of Controloccurs) of Executive’s annualized base salary for the fiscal year in which theChange of Control occurs, and (B) 60% (or such Higher Percentage for thefiscal year in which the Date of Termination occurs) of Executive’s annualizedbase salary for the fiscal year in which Executive’s Date of Terminationoccurs, in either case, multiplied by (ii) a fraction, the numerator ofwhich is the number of calendar days in the fiscal year in which the Date ofTermination occurs through the Date of Termination and the denominator of whichis three hundred sixty-five (365);

 

(c)           Anyaccrued vacation pay to the extent not theretofore paid;

 

(d)           Threetimes Executive’s annualized rate of base salary in effect 30 days prior to theDate of Termination (disregarding any change therein which constitutes GoodReason hereunder); and

 

(e)           Threetimes 60% of Executive’s annualized base salary for the fiscal year in whichExecutive’s Date of Termination occurs (disregarding any change therein whichconstitutes Good Reason hereunder).

 

Any amount paid pursuant to Section 2 shall be inlieu of any other amount of severance relating to salary or bonus continuationto be received by Executive upon termination of employment of Executive underthe Employment Agreement or under any severance plan or policy of the Companyduring the Termination Period. After the Termination Period, if Executive’semployment is terminated by the Company without Cause or by the Executive for

 

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Good Reason, theExecutive shall be entitled to receive the greater of (a) all amounts towhich he would be entitled under Section 2.4(e) of his Employment Agreementand (b) severance amounts in accordance with whatever severance plans andpolicies that the Company or the surviving entity after the Change of Controlhas in place for similarly situated employees on the Date of Termination,giving full service credit under all such plans for the period prior to theChange of Control during which Executive was employed by the Company. Nothingcontained in this Agreement shall in any way reduce or modify the Executive’srights and payments under Executive’s Supplemental Executive Retirement Plandated April 15, 2003 (the “SERP”) and no payment pursuant to the SERPshall reduce the benefits hereunder.

 

4.             CertainAdditional Payments and Benefits to be provided by the Company.

 

(a)           ExcessParachute Payment.  If any paymentsto be received by the Executive, including payments under this Agreement,either alone or in conjunction with any other payments or benefits madeavailable to the Executive in connection with the termination of the Executive’semployment or a Change of Control of the Company result in Executive’sincurring the tax (the “Excise Tax”) imposed by Section 4999 of theInternal Revenue Code of 1986 (the “Code”) on “excess parachute payments”within the meaning of Section 280G(b)(l) of the Code, the Company will payto Executive an additional amount (the “Gross Up Payment”) necessary toreimburse Executive on an after-tax basis (including FICA, excise taxes,interest and penalties) for the Excise Tax. In determining the amount of the Gross Up Payment, Executive will bedeemed to pay federal income taxes at the highest marginal rate of federalincome taxation in the calendar year in which the Gross Up Payment is to bemade and state and local income taxes at the highest marginal rates of taxationin the state and locality of Executive’s residence on the Date of Termination,net of the maximum reduction in federal income taxes that could be obtainedfrom deduction of such state and local taxes.

 

(b)           TheExecutive agrees that he will not report any payments received from the Companyfollowing a Change of Control to the IRS as being subject to the Excise Tax;provided that, if Executive receives and provides to the Company a writtenopinion from Executive’s tax counsel or from an accounting firm reasonablyacceptable to the Company that it is reasonably likely that Executive will besubject to the Excise Tax or a penalty as a result of reporting such paymentson such basis, the Company shall within 30 days after the receipt of suchopinion, either (i) promptly pay the amount of the Excise Tax and theGross-Up Payment as provided in Section 4(a) hereof prior to the timesuch Excise Tax is due to Executive, which Excise Tax amount Executivecovenants to pay to the IRS within 10 days after Executive’s receipt thereoffrom the Company or (ii) provide Executive with an opinion effective as ofthe time of Executive’s filing of his return relating to such payments,addressed to Executive from a tax advisor or counsel reasonably acceptable toExecutive, which provides that there is a reasonable basis as defined inTreasury Regulation Section 1.6662-3(b)(3) for reporting the paymentsreceived by Executive from the Company following a Change of Control to the IRSas not being subject to the Excise Tax. If the IRS challenges Executive’s position that the payments are notsubject to the Excise Tax, the Company has the right, in its sole discretionand at its sole expense and with the Executive’s co-operation, to defend thatposition and negotiate, dispute or

 

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litigate with the IRS inwhatever forums the Company considers appropriate.  Any Gross-Up Payment will only be made whensuch dispute is finally resolved or determined by final non-appealableauthority.

 

(c)           Inaddition, for a period of three years following the Date of Termination, theCompany will provide Executive and his qualified beneficiaries, as defined in Section 4980B(g)(1)(A) ofthe Internal Revenue Code, continued coverage under all insurance plans of theCompany, including, without limitation, all medical insurance and other healthplans, life insurance and disability insurance plans of the Company (the “ContinuedBenefits”) in which Executive or his qualified beneficiaries were a participantimmediately prior to the Date of Termination or successor plans thereto,subject to the timely payment (inclusive of an extra thirty (30) day graceperiod with notice) by Executive of all premiums, contributions and otherco-payments required to be paid during such period by senior executives of theCompany under the terms of such plans in effect from time to time.

 

5.             WithholdingTaxes.  The Company may withhold fromall payments due to Executive (or his beneficiary or estate) hereunder alltaxes which, by applicable federal, state, local or other law, the Company isrequired to withhold therefrom.

 

6.             Termof Agreement.  This Agreement shallbe effective on the date hereof and shall continue in effect until the firstanniversary of the date hereof; provided, however, if on the first anniversaryof the date hereof, the Company or its shareholders are party to a definitiveagreement the consummation of which would result in a Change of Control, theterm of this Agreement shall be automatically extended through the consummationof such Change of Control or its earlier abandonment or termination. ThisAgreement shall continue in effect for a period of twenty-four (24) monthsafter a Change of Control, if such Change of Control shall have occurred duringthe term of this Agreement provided above. Notwithstanding anything in this Section 6 to the contrary, thisAgreement shall terminate if Executive or the Company terminates Executive’semployment prior to a Change of Control, except as provided in the lastparagraph of Section 1(e) or the last paragraph of Section 1(j).

 

7.             Terminationof Agreement.  This Agreement shallbe effective on the date hereof and shall continue until the first to occur of (a) terminationof Executive’s employment with the Company prior to a Change of Control (exceptif such termination is pursuant to the last paragraph of Section 1(e) orthe last paragraph of Section 1(j) hereof), (b) a NonqualifyingTermination, (c) the end of the Termination Period, or (d) expirationin accordance with Section 6. If this Agreement is terminated or expirespursuant to this Section 7, the Employment Agreement, except as otherwiseamended in occurrence with the terms of the Employment Agreement, shall remainin full force and effect and unchanged by this Agreement.

 

8.             Successors:Binding Agreement.

 

(a)           ThisAgreement shall not be terminated by any merger, consolidation, share exchangeor similar form of corporate reorganization of the Company or any such type oftransaction involving the Company or any other member of the Company Group (a “Business

 

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Combination”). In theevent of any Business Combination, the provisions of this Agreement shall bebinding upon the surviving or resulting corporation or the Person to which suchassets are transferred (the “Surviving Company”) and such Surviving Companyshall be treated as the Company hereunder.

 

(b)           ThisAgreement shall inure to the benefit of and be enforceable by Executive’spersonal or legal representatives, executors, administrators, successors,heirs, distributees, devisees and legatees. If Executive shall die and, under the terms of this Agreement, anypayment would be required to Executive hereunder, all such amounts, unlessotherwise provided herein, shall be paid in accordance with the terms of thisAgreement to such Person or Persons appointed in writing by Executive toreceive such amounts or, if no Person is so appointed, to Executive’s estate.

 

9.             Notice.

 

(a)           Forpurposes of this Agreement, all notices and other communications required orpermitted hereunder shall be in writing and shall be deemed to have been dulygiven when delivered or five (5) Business Days after deposit in the UnitedStates mail, certified and return receipt requested, postage prepaid, addressedas follows:

 
| If to the Executive: | At the last known  address shown in the Company’s |
|----------------------|--------------------------------------------------------|
|                 | personnel records                                      |
|                 |                                                   |
| If to the Company:   | Euramax  International, Inc.                      |
|                 | 5445 Triangle Parkway                                  |
|                 | Suite 350                                         |
|                 | Norcross, Georgia 30092                                |
|                 | ATTN: Corporate  Secretary                             |

 

or to such other addressas either party may have furnished to the other in writing in accordanceherewith, except that notices of change of address shall be effective only uponreceipt.

 

(b)           Awritten notice of Executive’s Date of Termination by the Company or Executive,as the case may be, to the other, shall (1) indicate the specifictermination provision in this Agreement relied upon, (2) to the extentapplicable, set forth in reasonable detail the facts and circumstances claimedto provide a basis for termination of Executive’s employment under theprovision so indicated and (3) specify the termination date.  The failure by Executive or the Company toset forth in such notice any fact or circumstance which contributes to ashowing of Good Reason or Cause shall not waive any right of Executive or theCompany hereunder or preclude Executive or the Company from asserting such factor circumstances in enforcing Executive’s or the Company’s rights hereunder.

 

10.           FullSettlement.  Payment by the Companyof its obligations hereunder and performance of the Company’s other obligationshereunder shall be in lieu and in full settlement of all other severanceobligations to Executive under any severance or employment agreement

 

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between the Executive andany member of the Company Group, excluding any payments to which Executive isentitled under the Company’s Supplemental Executive Retirement Plan, dated April 15,2003, the Company’s Supplemental Executive Retirement Plan dated December 31,2004 and other benefits specifically provided by the Company to Executivecontingent upon a Change of Control, if any, as approved by the Board.  In no event shall Executive be obligated toseek other employment or take other action by way of mitigation of the amountspayable to Executive under any of the provisions of this Agreement and suchamounts shall not be reduced whether or not Executive obtains other employmentand shall not be reduced by offset against any amount claimed to be owed by theExecutive to the Company.

 

11.           GoverningLaw, Validity.  The interpretation,construction and performance of this agreement shall be governed by andconstrued and enforced in accordance with the internal laws of the state ofDelaware without regard to the principle of conflicts of laws.  The invalidity or unenforceability of anyprovision of this agreement shall not affect the validity or enforceability ofany other provision of this agreement, which other provisions shall remain infull force and effect.

 

12.           Counterparts.  This Agreement may be executed incounterparts, each of which shall be deemed to be an original and all of whichtogether shall constitute one and the same instrument.

 

13.           Miscellaneous.  No provision of this Agreement may bemodified or waived unless such modification or waiver is agreed to in writingand signed by Executive and by a duly authorized officer of the Company.  No waiver by either party hereto at any timeof any breach by the other party hereto of, or compliance with, any conditionor provision of this Agreement to be performed by such other party shall bedeemed a waiver of similar or dissimilar provisions or conditions at the sameor at any prior or subsequent time. Failure by Executive or the Company to insist upon strict compliancewith any provision of this Agreement or to assert any right Executive or theCompany may have hereunder shall not be deemed to be a waiver of such provisionor right or any other provision or right of this Agreement.  Except as otherwise specifically providedherein, the rights of, and benefits payable to, Executive, Executive’s estateor Executive’s beneficiaries pursuant to this Agreement are in addition to anyrights of, or benefits payable to, Executive, Executive’s estate or Executive’sbeneficiaries under any other employee benefit plan or compensation program ofthe Company.

 

14.           ConfidentialInformation.  Executive hereby agreesthat, if there is a Change of Control and Executive’s employment with theCompany is terminated for any reason other than a Nonqualifying Terminationeither prior to the Change of Control pursuant to the last paragraph of Section 1(e) orthe last paragraph of Section 1(j) hereof or after the Change of Controlduring the Termination Period, Executive agrees that he will not disclose anyConfidential Information of the Company, its Subsidiaries and/or Affiliatesthat came into his knowledge during his employment by the Company without theprior written consent of the Company. “Confidential Information” means any dataor information that the Company treats as confidential, that is

 

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valuable to the Companyand that is not known to the public or to vendors or to competitors of theCompany, its Subsidiaries or Affiliates.

 

15.           RequiredApproval.  The obligations of theCompany hereunder are contingent upon approval of this Agreement by more than75% of the voting power of the Company’s outstanding stock (as determined underSection 280G(b)(5)(B)(i) of the Internal Revenue Code of 1986, asamended (the “Code”), and the Treasury Regulations promulgated under Code Section 280G),which approval the Company shall obtain prior to the execution of a bindingcontract for a merger or other transaction which would result in a Change ofControl. The Executive and the Company acknowledge that in seeking suchapproval, they will use their best efforts to satisfy the requirements of Code Section 28OG(b)(5)(A)(ii) andthe Treasury Regulations promulgated under Code Section 280G.

 

16.           Scopeof Agreement.  Nothing in thisAgreement shall be deemed to entitle Executive to continued employment with theCompany or its Subsidiaries, and if Executive’s employment with the Companyshall terminate prior to a Change of Control, Executive shall have no furtherrights under this Agreement (except if such termination is pursuant to the lastparagraph of Section 1(e) or the last paragraph of Section 1(j)hereof); provided, however, that any termination of Executive’semployment during the Termination Period shall be subject to all of theprovisions of this Agreement.

 

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IN WITNESS WHEREOF, the Company has caused thisAgreement to be executed by a duly authorized officer of the Company andExecutive has executed this Agreement as of the day and year first abovewritten.

 
| EURAMAX INTERNATIONAL,  INC. |   | EXECUTIVE: |
|------------------------------|--------|------------|
|                         |   |       |
|                         |   |       |
| By:                          |   |       |   |
|                         |   |       | J. David Smith |
|                         |   |       |
| Title:                       |   |       |   |
|                              |        |            |  |  |  |

 

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**EXHIBIT A - RELEASE**

 

THIS RELEASE (the “Release”) is entered into by andbetween [**insert name of employer**] (the “Company’)and                           (“Employee”),a resident of the state and country of                           .

 

**WITNESSETH**

 

Employee and the Company are terminating their employmentrelationship, effective           ,           , and desireto settle fully and finally all differences between them that may arise out ofor relate to Employee’s employment with the Company and all other claimsEmployee has or may have through the Effective Date of this Release; and

 

NOW, THEREFORE, in consideration of this recital, theagreements, warranties, and representations contained herein and other good andvaluable consideration, the receipt, adequacy and sufficiency of which ishereby acknowledged, the parties to this Release hereby agree as follows:

 

1.             Execution.  Employee represents and warrants that he orshe is competent to enter into this Release, is relying on independent judgmentand the opportunity to seek the advice of legal counsel, and has not beeninfluenced in making this Release by any representations made by or on behalfof the Company.

 

2.             SpecificConsideration.  In exchange for therelease provided hereunder and other good and valuable consideration, and uponthe execution of this Release, Employee shall be paid in accordance with thatcertain Executive Severance Agreement between Employee and the Company (or theCompany’s predecessor) dated                 ,2005 (“Severance Agreement”), which payment includes all amounts, if any, whichare owed to Employee pursuant to any agreement, plan or policy of the Companyarising from a “Change of Control” of the Company, as defined in the SeveranceAgreement, if such amount has not been previously paid to Employee.

 

Employee agrees that no further amount is or shall bedue or claimed to be due from the Company and/or from any other person orentity released in paragraph 3 below except for any post-termination paymentamounts owed to Employee pursuant to employee benefit plans qualified under theEmployee Retirement Income Security Act of 1974, as amended (“ERISA”), pursuantto the applicable requirements of Part 6 of Subtitle B of Title I of ERISAand Section 4980B of the Internal Revenue Code of 1986, as amended (“COBRA”),or any payments to or rights of Employee hereunder or under the Employee’sSupplemental Executive Retirement Plan dated April 15, 2003, the Employee’sSupplemental Executive Retirement Plan dated December 31, 2004, the 1999Phantom Stock Plan, the Euramax International, Inc. 2003 EquityCompensation Plan (the “Equity Plan”) (or underlying agreements), theRestricted Stock Agreement pursuant to the Equity Plan, the EuramaxInternational, Inc. 2005 Retention Bonus Program or any shareholderagreement relating to Euramax International, Inc. to which

 

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Employee is a party orany rights Employee may have pursuant to any indemnification provided byEuramax International, Inc. (such payments or rights set forth in thisparagraph, collectively, the “Surviving Obligations”)

 

3.             Release.  In consideration of the payment provided forin paragraph 2 above and other good and valuable consideration, the receipt,adequacy, and sufficiency of which are hereby acknowledged, Employee and his orher heirs, executors, administrators, agents, assigns, and any otherrepresentative or entity acting on his, her or their behalf; do hereby now andforever unconditionally release, discharge, acquit and hold harmless theCompany [**and Euramax International, Inc.**(“**Parent**”),] and any of their affiliates or related companies,and any and all of their employees, directors, officers, shareholders, agents,administrators, assigns, and any other representative or entity acting on theirbehalf (collectively the “Released Parties”), from any and all claims, rights,demands, actions, suits, damages, losses, expenses, liabilities, indebtedness,and causes of action, of whatever kind or nature that existed from thebeginning of time through the date he or she executes this Release, regardlessof whether known or unknown, and regardless of whether asserted by Employee todate, other than any rights under the Surviving Obligations.

 

4.             Enforcement.  In the event of a default or breach of thisRelease, each party may pursue whatever legal or equitable remedies that may beavailable to such party to seek judicial enforcement of this Release, whetherby injunction, specific performance, an action for damages or otherwise.

 

5.             Jurisdiction.  The laws of the State of Delaware shallgovern this Release, unless pre-empted by any applicable federal law.

 

6.             General.  This Release may be signed in counterpartswith the same force and effect as if signed in a single document.  No provision of this Release may be modifiedor waived except by a written agreement signed by each of the partieshereto.  This Release contains the entireagreement of the parties, and supersedes any and all prior or contemporaneousunderstandings, agreements, representations and/or promises, whether oral or written,which are not expressly set forth herein or expressly referred to herein.

 

7.             OWBPARights.  Employee is advised to seeklegal counsel regarding the terms of this Release.  Employee acknowledges that he or she haseither sought legal counsel or has consciously decided not to seek legal counselregarding the terms and effect of this Release. Employee acknowledges that thisRelease releases only those claims which exist as of the date he or sheexecutes this Release.

 

(a)           Employeeacknowledges that he or she make take up to a period of forty-five (45) daysfrom the date of receipt of this Release within which to consider and sign thisRelease, but he or she may also choose to sign and return it earlier.

 

(b)           Employeeacknowledges that he or she will have seven (7) days from the date ofsigning this Release to revoke the Release in writing in its entirety (“RevocationPeriod”).

 

2

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Employee acknowledgesthat the Release will not become effective or enforceable until the RevocationPeriod has expired.  In the event theEmployee chooses to revoke this Release, within the Revocation Period, he orshe will:

 

(i)            Revokethe entire Release in a signed writing, delivered to the following person on orbefore the seventh (7th) day after he or she executed the Release:

 

|   |
|--------|
|   |

 

(ii)           Forfeitall severance payments rights that are contemplated by this Release.

 

(c)           TheEffective Date of this Release shall be the eighth (8th) day afterthe date Employee signs the Release, assuming the Employee has not properly revokedthe Release in writing within the Revocation Period.

 

(d)           Employeeacknowledges receipt, in Schedule 1 attached hereto, of a list ofjob titles and ages of all employees of the Company and of all entitiescontrolled by or under common control with the Company who were selected forparticipation in the employment termination program (as such term is entitledin 29 USC §626(f)(1)(F)(ii)) in which Employee participates and a list of jobtitles and ages of all such employees in the same job classification(s) as suchparticipants but who were not selected for such participation.

 

(e)           Employeeexpressly acknowledges that the payments and the other consideration that he orshe is receiving under the Release constitute material consideration for his orher execution of this Release, and represent valuable consideration to which heor she would not otherwise be entitled.

 

3

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**IN WITNESS WHEREOF**, theundersigned have executed this Release on the date set forth below.

 
|                                                                                                                                                                                                                                     | **EMPLOYEE:**                 |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------|
| Subscribed before me  this the                                                                                                                                                                                                           |                          |
|          day  of                   ,            |                          |   |
|                                                                                                                                                                                                                                     | Signature of Employee         |
|                                                                                                                                                                                                                                     |                          |
|                                                                                                                                                                                                                                     |                          |   |   |
| Notary Public                                                                                                                                                                                                                            | Printed Name of  Employee     |
|                                                                                                                                                                                                                                     |                          |
| My commission expires:                                                                                                                                                                                                                   | Date:                         |   |   |
|                                                                                                                                                                                                                                     |                          |
|                                                                                                                                                                                                                                     |                          |   |
| ** **                                                                                                                                                                                                                               | **[Insert Name of Employer]** |
|                                                                                                                                                                                                                                     |                          |
|                                                                                                                                                                                                                                     | By:                           |   |   |
|                                                                                                                                                                                                                                     | Its:                          |   |   |
|                                                                                                                                                                                                                                     |                          |
|                                                                                                                                                                                                                                     | Date:                         |   |   |
|                                                                                                                                                                                                                                          |                               |  |  |  |  |  |  |  |

 

4

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| ** **    | Schedule 1 | ** ** |
|---------------|-----------------|------------|
| ** **    |
| ** **    | Participants    | ** ** |
| ** **    |
| **Job Title** | ** **      | **Ages**   |
|          |            |       |
|          |            |       |
|          |            |       |
|          |            |       |
|               |                 |            |  |  |

 

 

| ** **    | Non Participants | ** ** |
|---------------|------------------|------------|
| ** **    |
| **Job Title** | ** **       | **Ages**   |
|          |             |       |
|          |             |       |
|          |             |       |
|          |             |       |
|               |                  |            |  |  |

 

5

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