Exhibit
10.4


 


AMENDMENT NO. 1 TO
EXECUTIVE EMPLOYMENT AGREEMENT


 


AMENDMENT NO. 1 (this
“Amendment”), dated as of April 15, 2003, to the Executive Employment
Agreement, dated as of October 1, 1999 (the “Employment Agreement”), by
and between Euramax International, Inc., a Delaware corporation (the
“Company”), and J. David Smith (“Executive”).


 


Background


 


The Company and the
Executive desire to amend the Employment Agreement, in accordance with Section
3.12 thereof, and upon the terms and conditions and in the manner set forth
below.


 


Terms


 


In consideration of the
mutual covenants contained herein and intending to be legally bound hereby, the
parties hereto agree as follows:


 


1.                                       Definitions.  Section 1.1 of the Employment Agreement is
hereby amended as follows:


 


The definition of
“Investor Group” is hereby amended to read as follows:


 


“‘Investor Group’  means, collectively, the individuals and
entities party to the Securities Holders Agreement dated April 15, 2003,
and each of their respective Affiliates.”


 


The following definition
is added, in its entirety, as follows:


 


“‘Closing’  means Closing as defined in the Stock
Purchase Agreement, dated the date hereof, by and among Citigroup Venture
Capital Equity Partners, L.P. and affiliates, the Company and CVC European
Equity Partners, L.P., CVC European Equity Partners (Jersey), L.P., BNP Paribas
(the “Stock Purchase Agreement”).”


 


Capitalized terms which
are used but not defined herein shall have the meanings ascribed to them in the
Employment Agreement.


 


2.                                       Section
2.2(a).  Section 2.2(a) of the
Employment Agreement is hereby amended to read, in its entirety, as follows:


 


“(a)                            Commencing
on the Effective Date and continuing during the Employment Period, Executive
shall serve as Chairman, President and Chief Executive Officer of Euramax and
such other members of the Company Group as the Board shall determine and shall
have the normal duties, responsibilities and


 

















 


authority of a Person
serving in such capacity in an organization of similar size and structure as
Euramax, subject in each instance to the supervision and direction of the
Board.”


 


3.                                       Section
2.3(a).  Section 2.3(a) of the
Employment Agreement is hereby amended to read, in its entirety, as follows:


 


“(a)                            During
the Employment Period, Executive’s base salary shall be $525,000 per annum or
such greater amount as the Board shall determine, from time to time, in its
sole discretion (the “Base Salary”), which salary shall be payable in
regular installments in accordance with the Company Group’s general payroll
practices and shall be subject to customary withholding.  The Board shall conduct a salary review in
twelve (12) months from the Closing.


 


4.                                       Section
2.3(b).  Two new sentences at the
end of Section 2.3(b) of the Employment Agreement are hereby inserted to read,
in its entirety, as follows:


 


“Euramax and Executive
acknowledge and agree that the target bonus shall be 60% of Executive’s Base
Salary.  Upon the Closing (as defined in
the Stock Purchase Agreement), Executive will receive a sale bonus of $656,250.”


 


5.                                       Section
2.4(e).  Section 2.4(e) of the
Employment Agreement is amended as follows:


 


The second sentence of
Section 2.4(e) is hereby amended to read, in its entirety, as follows:


 


“In addition, during the
Severance Period, Euramax will provide Executive and his qualified
beneficiaries, as defined by Section 4980B(g)(1)(A) of the Internal Revenue
Code, continued coverage under all insurance plans of Euramax, including,
without limitation, all medical insurance and other health plans, life insurance
and disability insurance plans of Euramax (the “Continued Benefits”) in which
Executive or his qualified beneficiaries were a participant immediately prior
to the Date of Termination or successor plans thereto, subject to the timely
payment (inclusive of an extra thirty (30) day grace period with notice) by
Executive of all premiums, contributions and other co-payments required to be
paid during such period by senior executives of Euramax under the terms of such
plans in effect from time to time.”


 


Two new sentences to be
the fourth and fifth sentence of Section 2.4(e) of the Employment Agreement are
hereby inserted to read, in its entirety, as follows:


 


“In addition, after the
Severance Period Executive shall be entitled to participate in the Company’s
group health plan as in effect from time to time, provided that Executive
elects such coverage and timely pays premiums equal to those charged


 


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by the Company to
employees electing “continuation coverage” as that term is defined by Section
4980B of the Internal Revenue Code, substantially similar to that elected by
Executive.  Executive’s participation
for continued coverage in the group health plan for Executive and qualified
dependents shall extend from the date of termination of Executive’s employment
until the earlier of (i) the date Executive ceases to timely pay the required
premiums within thirty (30) days of when due after notice, (ii) the date the
Executive becomes covered under a group health plan of a subsequent employer,
(iii) the later of the date upon which the Executive first becomes eligible for
Medicare or attains the age sixty-five (65) or (iv) the date upon which the
Company no longer maintains a group health plan for any of its employees.”


 


6.                                       Section
2.4(i).  The first sentence of
Section 2.4(i) of the Employment Agreement is hereby amended by deleting the
phrase “,and then reduced for any other “parachute payments” (within the
meaning of Section 280G of the Internal Revenue Code) to the Executive from the
Company (including, without limitation, the acceleration of vesting of any
stock or stock options).”


 


7.                                       Section
2.8.  The Employment Agreement is
hereby amended to include a Section 2.8, to read in its entirety, as follows:


 


“2.8                           Certain
Repurchase Rights.  Notwithstanding
any provisions to the contrary in the Securities Holders Agreement, dated the
date hereof, by and among the Company and the holders specified therein (the
“SHA”), upon any exercise by the Company of the Company’s Purchase Option (as
defined in the SHA) in Section 5.2 of the SHA with respect to the Management
Shares (as defined in the SHA) or the Management Options (as defined in the
SHA) owned by the Executive, neither the Executive nor the Company will be
obligated to consummate the purchase or sale contemplated by the Purchase
Option (as defined in the SHA) unless each has approved the determination of
the Fair Market Value (as defined in the SHA) of the Management Shares or the
Management Options.  The Purchase Option
applicable to Executive shall expire six (6) months after its exercise by the
Company if no agreement on Fair Market Value has been reached at such time.”


 


8.                                       Section
3.3.  Section 3.3 of the Employment
Agreement is hereby amended to read, in its entirety, as follows:


 


“Notices.  All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally, mailed when received by certified or registered mail, return
receipt requested and postage prepaid, or sent via a nationally recognized
overnight courier, or one day after sent overnight.


 


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Such notices, demands and
other communications will be sent to the address indicated below:


 


To Euramax:


 


Euramax International,
Inc.


5445 Triangle Parkway,
Suite 350


Norcross, Georgia 30092


 


To Executive:


 


J. David Smith


5130 Riverlake Drive,
N.W.


Duluth, Georgia
30097-2367


 


or such other address or
to the attention or such other person as the recipient party shall have
specified by prior written notice to the sending party.”


 


9.                                       Effectiveness.  This Amendment shall be effective as of the
Closing without further action required on the part of any party hereto.  If the Closing does not occur and the Stock
Purchase Agreement is terminated, this Amendment shall have no force or effect
and shall be deemed void ab initio.


 


10.                                 Captions.  The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Amendment.


 


11.                                 Counterparts.  This Amendment may be executed in two or
more counterparts, each of which shall be an original, and both of which
together shall constitute one instrument.


 


12.                                 Governing
Law.  This Amendment shall be
governed by and construed in accordance with the laws of the State of Delaware,
without giving effect to conflicts of laws principles thereof which might refer
such interpretations to the laws of a different state or jurisdiction.


 


13.                                 Incorporation
of Amendment.  On and after the date
hereof, each reference in the Employment Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein” or words of like import shall be a reference to
the Employment Agreement as amended hereby.


 


14.                                 Continued
Effectiveness of Employment Agreement. 
Except as specifically amended above, all terms of the Employment
Agreement shall remain unchanged and in full force and effect.


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Amendment on the date first written above.


 


	
   

  	
  EURAMAX INTERNATIONAL
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  J. David Smith

  
					



 


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IN WITNESS WHEREOF, the parties hereto have executed
this Amendment on the date first written above.


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stuart Wallis

  	
   

  	
   

  	
  Joseph Silvestri

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Paul Drack

  	
   

  	
   

  



 


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