CONFIDENTIAL
PORTION MARKED [**] HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH
THE SECURITIES
AND EXCHANGE COMMISSION
EXHIBIT 10.4
SECOND AMENDMENT TO
THE
AMENDED AND RESTATED RESTRICTED
STOCK AGREEMENT
This Second Amendment to the Amended and
Restated Restricted Stock Agreement (“Amendment”) is
made as of this 30th day of June, 2008 between Simmons Holdco,
Inc., a Delaware corporation (the “Company”), and the
undersigned (the “Restricted Shareholder”).
WHEREAS, the Company and the Restricted
Shareholder entered into that certain Amended and Restated
Restricted Stock Agreement, dated as of April 17, 2006, as such may
have been amended from time to time to date (the
“Agreement”); and
WHEREAS, the Company and the Restricted
Shareholder desire to amend the Agreement on the terms set forth
herein.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby agree as follows:
1. Definitions
. Capitalized terms used herein but not defined shall
have the meanings ascribed thereto in the Agreement.
(a) The
Agreement is hereby amended by deleting the entirety of
Section 2(a)(ii)(B) and redesignating
Section 2(a)(ii)(A) as Section 2(a)(ii)
.
(b) The
Agreement is hereby amended by replacing the word
“solely” in the first sentence of
Section 2(a)(ii) with the phrase “under this
Section 2(a)(ii) ”.
(c) The
Agreement is hereby amended by adding the following provision as
Section 2(a)(iii) :
Tier One and Tier Two Changes of
Control .
(A) Upon
the consummation of a Tier One Change of Control (as defined
below), up to 50% of the Missed Shares and up to 50% of the Shares
that are not yet Eligible Shares shall become Vested
Shares. A “ Tier One Change of Control
” means any Change of Control that (i) is not a Tier Two
Change of Control (as defined below), (ii) occurs during one of the
years reflected in the table below and (iii) results in Tier
One Proceeds (as defined below). “ Tier One
Proceeds ” means Net Proceeds Per Class A Share (as
defined below) payable at closing of the Change of Control, when
added to the dividend proceeds per share previously received by THL
thereon, that equal or exceed the product of
(x) the “ Applicable Tier One Multiple ” (as
reflected in the table below) and (y) the Original Cost (as defined
in the Certificate of Incorporation of the Company, as amended from
time to time) of a share of Class A Common Stock, par value $0.01
per share, of the Company (the “ Class A Common Stock
”) purchased on December 19, 2003.
|
Year in which
Tier One Change of Control
Occurs
|
Applicable Tier One
Multiple
|
|
2009
|
** x
|
|
2010
|
** x
|
The number of
Missed Shares and Shares that are not yet Eligible Shares that will
become Vested Shares under this Section 2(a)(iii)(A) shall
equal the maximum number of such shares (up to 50%) that may become
Vested Shares and still result in Tier One Proceeds.
