EXHIBIT 10.2
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), on the
following terms and conditions:
1. The Company shall pay Alger a cash bonus (payable as set forth herein) (the
"Bonus") in an aggregate amount up to $1,406,645.19. ▇▇▇▇▇ agrees and
acknowledges that if ▇▇▇▇▇'▇ employment by Sun Capital Advisors, Inc. or
any of its affiliates ("Sun") is terminated for any reason, other than by
Sun without Cause (as defined in the Company's 2006 Stock Option Plan (the
"Plan")), or ▇▇▇▇▇ breaches or violates (as determined in the sole
discretion of Sun or 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 ▇▇▇▇▇
(each a "Grant Agreement"), or any employment, bonus, option grant or other
agreement between ▇▇▇▇▇ and Sun or the Company or its affiliates, ▇▇▇▇▇
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 ▇▇▇▇▇ is employed by Sun as of
the date of such Change of Control, the Company shall pay ▇▇▇▇▇ an
amount equal to $1,406,645.19, less the amount, if any, by which
$2,002,500 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) 18,000 (the amount
resulting from this calculation, the "Bonus Amount").
(b) In the event (i) ▇▇▇▇▇'▇ employment by Sun is terminated without Cause
and (ii) as of the date of such termination (the "Termination Date"),
▇▇▇▇▇ 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 ▇▇▇▇▇ 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
▇▇▇▇▇ 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 (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
▇▇▇▇▇.
4. The Company may withhold from any amounts payable to ▇▇▇▇▇ 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. ▇▇▇▇▇ 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 ▇▇▇▇▇, or
any employment, bonus, option grant or other agreement between ▇▇▇▇▇ and
Sun or 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 ▇▇▇▇▇'▇ 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. ▇▇▇▇▇ agrees and acknowledges that nothing in this Agreement shall confer
upon ▇▇▇▇▇ 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/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Signature Page to Bonus Agreement