SUPPLEMENT TO
EMPLOYMENT AGREEMENT
This
Supplement to the Employment Agreement (as defined below) effective
as of the 9th day of December, 2005 (the “Supplement
Agreement”) is made between WILLIAM S. CREEKMUIR (the
“Executive”) and SIMMONS COMPANY (p/k/a THL BEDDING
HOLDING COMPANY), a Delaware corporation, (“Holdings”)
and SIMMONS BEDDING COMPANY (p/k/a SIMMONS COMPANY), a Delaware
corporation, along with its subsidiaries, parents, joint ventures,
affiliated entities, and includes its successors and assigns or any
such related entities (the “Company”). In consideration
of the payment in Section 1 below, and pursuant to
Section 14 of the Executive’s Employment Agreement made
as of December 19, 2003 (“Employment Agreement”),
the Executive, Holdings and the Company hereby acknowledge and
agree that this Supplement Agreement shall amend and supplement the
Executive’s Employment Agreement. The Executive, Holdings and
the Company also acknowledge and agree that this Supplement
Agreement specifically supersedes Sections 5, 6, 7, and 9.5 of
the Employment Agreement in their entirety and Sections 14 and
19 of the Employment Agreement, but only for the purposes of
interpretation of this Supplement Agreement and only then to the
extent the terms and conditions of Sections 14 and 19 conflict
with this Supplement Agreement, so that such terms and conditions
shall have no further force or effect as of the effective date of
this Supplement Agreement. Sections 14 and 19 of the
Employment Agreement continue to be in full force and effect with
respect to the interpretation of the remaining terms of the
Employment
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Agreement
(other than Section 5, 6, 7 and 9.5) and the revisions set
forth in this Supplement Agreement do not apply to the same. The
parties agree to the following:
1.
Consideration : In consideration for the execution by the
Executive of this Supplement Agreement, Company is increasing the
Executive’s Salary by $1,000 to $391,000 effective as of the
9th day of December, 2005. The Executive acknowledges the receipt
and sufficiency of this consideration.
2.
Restrictive Covenants .
a.
Definitions : Unless otherwise specifically defined herein,
each term used herein that is defined in the Employment Agreement
shall have the meaning assigned to such term therein.
(1)
“Business of the Company” means the highly competitive
business of developing, manufacturing, marketing, distributing,
and/or selling sleep products, including mattresses, foundations,
changing pads and covers, and bedding components for the
same.
(2)
“Competitive Business(es)” include any firm,
partnership, corporation, joint venture and/or any other entity
and/or person, including but not limited to Sealy Corporation,
Serta International, Spring Air Company, Select Comfort
Corporation, Tempur-Pedic International, Inc., King Koil Licensing
Company, Inc., and/or any licensee of such entity, that develops,
manufactures, markets, distributes, and/or sells any of the sleep
products described in Section 2.a.(1).
(3) The
Executive’s “Job Duties” are those duties set
forth in Section 2 of the Employment Agreement and those
duties as may from time-to-time reasonably be prescribed by the
Company during the period of Executive’s employment with the
Company.
(4)
“Customers” means any firm, partnership, corporation
and/or any other entity and/or person that purchased or purchases
from the Company any of the sleep products described in Section
2.a.(1).
(5)
“Customer Prospects” means any firm, partnership,
corporation and/or any other entity and/or person that was
reasonably expected by the Company to purchase from the Company any
of the sleep products described in Section 2.a.(1).
(6)
“Vendors” means any individual and/or entity that
provided goods and services to the Company.
(7)
“Material Contact” means personal contact or the
supervision of the efforts of those who have direct personal
contact with Customers, Customer Prospects, or Vendors in an effort
to initiate or further a business relationship between the Company
and such Customers, Customer Prospects, or Vendors.
(8)
“Confidential Information” means information about the
Company and its Customers, Customer Prospects, and/or Vendors that
is not generally known outside of the Company, which the Executive
learned or will learn of in connection with the Executive’s
employment with the Company. Confidential Information may include
without limitation: (1) the Company’s business policies,
finances, and business plans; (2) the Company’s
financial projections, including but not limited to, annual sales
forecasts and targets and any computation(s) of the market share of
Customers and/or Customer Prospects; (3) sales information
relating to the Company’s product roll-outs; (4) customized
software, marketing tools, and/or supplies that the Executive was
provided access to by the
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Company and/or
created; (5) the identity of the Company’s Customers,
Customer Prospects, and/or Vendors (including names, addresses, and
telephone numbers of Customers, Customer Prospects, and/or
Vendors); (6) any list(s) of the Company’s Customers,
Customer Prospects, and/or Vendors; (7) the account terms and
pricing upon which the Company obtains products and services from
its Vendors; (8) the account terms and pricing of sales
contracts between the Company and its Customers; (9) the
proposed account terms and pricing of sales contracts between the
Company and its Customer Prospects; (10) the names and
addresses of the Company’s employees and other business
contacts of the Company; and (11) the techniques, methods, and
strategies by which the Company develops, manufactures, markets,
distributes, and/or sells any of the sleep products described in
Section 2.a.(1).
(9)
“Trade Secrets” means Confidential Information which
meets the additional requirements of the Delaware Uniform Trade
Secrets Act (“DUTSA”), 6 Del. Code Ann. §§
2001-2011, and/or under any other applicable law.
(10)
“Proprietary Rights” means any and all inventions,
discoveries, developments, methods, processes, compositions, works,
supplier and customer lists (including information relating to the
generation and updating thereof), concepts, and ideas (whether or
not patentable or copyrightable) conceived, made, developed,
created, or reduced to practice by the Executive (whether at the
request or suggestion of the Company or otherwise, whether alone or
in conjunction with others, and whether during regular hours of
work or otherwise) prior to or during the Executive’s
employment, which may be directly or indirectly useful in, or
related to, the Business of the Company or any business or products
contemplated by the Company while the Executive was or is an
employee, officer, or director of the Company.
b. The
Executive agrees that Executive’s work for the Company has
brought and will bring the Executive into close contact with many
of the Customers, Customer Prospects, Vendors, Trade Secrets, and
Confidential Information. The Executive further agrees that the
covenants in this Section 2 are reasonable and necessary to
protect the Company’s legitimate business interests and its
Customer, Customer Prospects, and Vendor relationships, Trade
Secrets, Confidential Information, and Proprietary
Rights.
c. The
Executive agrees to faithfully perform the duties assigned to the
Executive and will not engage in any other employment or business
activity while employed by the Company that might interfere with
the Executive’s full-time performance of the
Executive’s duties for the Company or cause a conflict of
interest. The Executive agrees to abide by all of the
Company’s policies and procedures, which may be amended from
time-to-time.
d. The
Executive further agrees that, due to the Executive’s
position, the Executive’s engaging in any activity that may
breach this Supplement Agreement will cause the Company great,
immediate and irreparable harm.
e. Duty
of Confidentiality . The Executive agrees that during
Executive’s employment with the Company and for a period of
five (5) years following the termination of such employment
for any reason, the Executive shall not directly or indirectly
divulge or make use of any Confidential Information outside of
Executive’s employment with the Company (so long as the
information remains confidential) without the prior written consent
of the Company. The Executive shall not directly or indirectly
misappropriate, divulge, or make use of Trade Secrets for an
indefinite period of time, so long as the information remains a
Trade Secret as defined by the
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