**Exhibit10.4**

 

AMENDMENT NO. 1 TOEXECUTIVE EMPLOYMENT AGREEMENT

 

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

 

Background

 

The Company and theExecutive desire to amend the Employment Agreement, in accordance with Section3.12 thereof, and upon the terms and conditions and in the manner set forthbelow.

 

Terms

 

In consideration of themutual covenants contained herein and intending to be legally bound hereby, theparties hereto agree as follows:

 

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

 

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

 

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

 

The following definitionis added, in its entirety, as follows:

 

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

 

Capitalized terms whichare used but not defined herein shall have the meanings ascribed to them in theEmployment Agreement.

 

2.                                       Section2.2(a).  Section 2.2(a) of theEmployment Agreement is hereby amended to read, in its entirety, as follows:

 

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

 

----

 

authority of a Personserving in such capacity in an organization of similar size and structure asEuramax, subject in each instance to the supervision and direction of theBoard.”

 

3.                                       Section2.3(a).  Section 2.3(a) of theEmployment Agreement is hereby amended to read, in its entirety, as follows:

 

“(a)                            Duringthe Employment Period, Executive’s base salary shall be $525,000 per annum orsuch greater amount as the Board shall determine, from time to time, in itssole discretion (the “Base Salary”), which salary shall be payable inregular installments in accordance with the Company Group’s general payrollpractices and shall be subject to customary withholding.  The Board shall conduct a salary review intwelve (12) months from the Closing.

 

4.                                       Section2.3(b).  Two new sentences at theend of Section 2.3(b) of the Employment Agreement are hereby inserted to read,in its entirety, as follows:

 

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

 

5.                                       Section2.4(e).  Section 2.4(e) of theEmployment Agreement is amended as follows:

 

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

 

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

 

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

 

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

 

2

----

 

by the Company toemployees electing “continuation coverage” as that term is defined by Section4980B of the Internal Revenue Code, substantially similar to that elected byExecutive.  Executive’s participationfor continued coverage in the group health plan for Executive and qualifieddependents shall extend from the date of termination of Executive’s employmentuntil the earlier of (i) the date Executive ceases to timely pay the requiredpremiums within thirty (30) days of when due after notice, (ii) the date theExecutive becomes covered under a group health plan of a subsequent employer,(iii) the later of the date upon which the Executive first becomes eligible forMedicare or attains the age sixty-five (65) or (iv) the date upon which theCompany no longer maintains a group health plan for any of its employees.”

 

6.                                       Section2.4(i).  The first sentence ofSection 2.4(i) of the Employment Agreement is hereby amended by deleting thephrase “,and then reduced for any other “parachute payments” (within themeaning of Section 280G of the Internal Revenue Code) to the Executive from theCompany (including, without limitation, the acceleration of vesting of anystock or stock options).”

 

7.                                       Section2.8.  The Employment Agreement ishereby amended to include a Section 2.8, to read in its entirety, as follows:

 

“2.8                           CertainRepurchase Rights.  Notwithstandingany provisions to the contrary in the Securities Holders Agreement, dated thedate 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 (asdefined in the SHA) in Section 5.2 of the SHA with respect to the ManagementShares (as defined in the SHA) or the Management Options (as defined in theSHA) owned by the Executive, neither the Executive nor the Company will beobligated to consummate the purchase or sale contemplated by the PurchaseOption (as defined in the SHA) unless each has approved the determination ofthe Fair Market Value (as defined in the SHA) of the Management Shares or theManagement Options.  The Purchase Optionapplicable to Executive shall expire six (6) months after its exercise by theCompany if no agreement on Fair Market Value has been reached at such time.”

 

8.                                       Section3.3.  Section 3.3 of the EmploymentAgreement is hereby amended to read, in its entirety, as follows:

 

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

 

3

----

 

Such notices, demands andother 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, Georgia30097-2367

 

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

 

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

 

10.                                 Captions.  The section headings contained herein arefor reference purposes only and shall not in any way affect the meaning orinterpretation of this Amendment.

 

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

 

12.                                 GoverningLaw.  This Amendment shall begoverned by and construed in accordance with the laws of the State of Delaware,without giving effect to conflicts of laws principles thereof which might refersuch interpretations to the laws of a different state or jurisdiction.

 

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

 

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

 

4

----

 

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

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

 

5

----

 

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

 

 
|          |   |   |             |   |
|---------------|--------|--------|------------------|--------|
| Stuart Wallis |   |   | Joseph Silvestri |
|          |   |   |
|          |   |   |
|          |   |   |             |
| Paul Drack    |   |   |

 

6

----