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SEPARATION AND CONSULTING AGREEMENT

Termination Severance Agreement

SEPARATION AND CONSULTING AGREEMENT | Document Parties: FOAMEX INTERNATIONAL INC | Foamex LP You are currently viewing:
This Termination Severance Agreement involves

FOAMEX INTERNATIONAL INC | Foamex LP

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Title: SEPARATION AND CONSULTING AGREEMENT
Governing Law: Pennsylvania     Date: 11/13/2007
Industry: Containers and Packaging     Sector: Basic Materials

SEPARATION AND CONSULTING AGREEMENT, Parties: foamex international inc , foamex lp
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SEPARATION AND CONSULTING AGREEMENT

This Separation and Consulting Agreement (this “ Agreement ”) dated as of August 27, 2007 between Foamex International Inc., a Delaware corporation, and its primary operating subsidiary Foamex L.P. (together with their subsidiaries, successors and assigns, collectively, the “ Company ”), and Gregory J. Christian (the “ Executive ”).

WHEREAS, the Company and the Executive have entered into an Employment Agreement, dated February 12, 2007 (the “ Employment Agreement ”), pursuant to which the Executive is currently employed as the President of Foamex International Inc. and Foamex L.P.; and

WHEREAS, the Company and the Executive have agreed that the Executive’s employment with the Company shall terminate, and the Executive shall resign from his positions as the President of Foamex International Inc. and Foamex L.P. effective as of September 1, 2007 (the “Effective Date”); and

WHEREAS, the Company desires to provide the Executive with certain benefits upon the Executive’s termination of employment with the Company, in exchange for the Executive’s agreement to comply with certain restrictive covenants in favor of the Company and to execute a release of certain claims against the Company and its shareholders, directors, officers, employees, agents, attorneys, affiliates, parents, predecessors and assigns on the terms and subject to the conditions more fully set forth in this Agreement; and

WHEREAS, the Company desires to retain the Executive to provide consulting services after the Effective Date and the Executive desires to provide such services, on the terms and subject to the conditions more fully set forth in this Agreement.

NOW THEREFORE, in consideration of the promises, mutual covenants and other good and valuable consideration set forth in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Executive and the Company agree as follows:

I.

Entire Agreement

Except as otherwise stated in this Agreement, this Agreement is the entire agreement between the Company and the Executive with respect to the subject matter hereof and contains all agreements, whether written, oral, express or implied, between the Company and the Executive relating to the termination of the Executive’s employment with the Company and the Executive’s provision of consulting services to the Company, and, as of the Effective Date, supersedes and extinguishes any other agreement relating to the terms and conditions applicable to the termination of the Executive’s employment, and the Executive’s provision of consulting services to the Company, whether written, oral, express or implied, between the Company and the Executive, including, without limitation, such provisions included in the Employment Agreement. This Agreement may not be modified or amended, nor may any rights under it be waived, except in a writing signed and agreed to by the Company and the Executive specifically referencing the provision being so changed or modified.

 


 

 

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II.

Termination of Employment; Resignation from Positions; Consulting Services

The Executive’s employment by the Company and any and all titles, positions and appointments the Executive holds with the Company, whether as an officer, director or employee (including, without limitation, as the President and as a member of the Board of Directors of Foamex International Inc. (the “ Board ”)), shall cease as of the Effective Date. Effective as of the Effective Date, the Executive shall have no authority to act on behalf of the Company and shall not hold himself out as having such authority, enter into any agreement or incur any obligations on behalf of the Company, commit any member of the Company in any manner or otherwise act in an executive or other decision-making capacity with respect to the Company. For the period commencing on the Effective Date and ending on September 1, 2009, the Executive shall make himself available to provide consulting services pursuant to the terms of Section IV of this Agreement.

III.

Payments and Benefits

In consideration for the Executive’s entering into this Agreement, specifically including the restrictive covenants contained in Section V of this Agreement and the Executive’s execution on or following the Effective Date of a release of claims in the form attached to this Agreement as Exhibit A (the “ Release ”), the Executive shall be entitled to receive the payments and benefits described in Section III of this Agreement, subject to the Executive’s executing the Release and not revoking the Release before expiration of the seven-day revocation period described therein.

A.        a cash amount equal to $1,600,000, payable in fifty two (52) equal installments following the Effective Date in accordance with the Company’s regular payroll practices in effect as of the date of this Agreement, with the first installment payable on the first regularly scheduled payroll date occurring after the expiration of the seven-day revocation period described in the Release (which amount shall be deemed in full satisfaction of the Company’s obligations under Section 5.5(b)(i) of the Employment Agreement).

B.        a cash amount, equal to $200,000, reflecting a pro-rata target annual bonus for 2007 based on the number of days during 2007 that precede the Effective Date, payable in a cash lump sum at such time as annual bonuses are generally paid to other senior executives of the Company under the Company’s bonus plan (which amount shall be deemed in full satisfaction of the Company’s obligations under Section 5.5(b)(ii) of the Employment Agreement); provided that, in no event shall this cash amount be paid to the Executive prior to March 2, 2008.

C.        continued participation, through September 1, 2009, for the Executive and his eligible dependents in the Company’s medical and dental plans in which the Executive participated immediately prior to the Effective Date on a basis no less favorable to the Executive than the basis generally provided to other similarly-situated senior executives of the Company at the same cost the Executive was paying as an employee. The Executive agrees to provide appropriate documentation for any expenses incurred with respect to the Executive’s continued participation in the Company’s medical and dental plans described in the preceding sentence, and the Company agrees to reimburse such expenses no later than the last day of the taxable year following the taxable year during which such expenses were incurred. After September 1, 2009, the Executive shall be eligible to elect medical and/or dental continuation coverage under the

 


 

 

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provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”), to the extent such coverage is available to him under COBRA.

D.        as soon as reasonably practicable following the Effective Date, or such earlier date as may be required by applicable state statute or regulation, (i) any annual base salary or other compensation earned but not paid to the Executive prior to the Effective Date, (ii) any payments, benefits or entitlements that are vested, fully and unconditionally earned or due pursuant to Section 3.1 or Section 6.3 of the Employment Agreement or any Company plan, policy, program or arrangement or other agreement, (iii) payment for nine (9) unused vacation days for fiscal year 2007, with such payment being made on the first regularly scheduled payroll date occurring following the Effective Date and (iv) any business expenses that remain unreimbursed as of the Effective Date. The amounts described in clauses (i) through (iv) of the preceding sentence are referred to herein as the “ Accrued/Other Obligations ”. All payments due under Section IIID(ii) shall be paid in accordance with the applicable plan, policy, program or other agreement.

 

E.

No Duplication of Benefits

For the avoidance of doubt, the Accrued/Other Obligations described in Section IIID are not intended to result in any duplication of any payments or benefits described in the Employment Agreement or this Agreement or any compensation or benefits plans, policies, programs, agreements or arrangements of the Company determined on a payment-by- payment and benefit-by-benefit basis.

 

F.

Equity Awards

The Company and the Executive agree that (i) the portion of the Executive’s options to purchase common stock of the Company (“ Common Stock ”) granted in 2007 (“ 2007 Options ”) that would have vested during the one-year period following the Effective Date, shall vest as of the Effective Date, and such 2007 Options that are vested stock options (after giving effect to the vesting described in this sentence) shall remain exercisable through the earlier of (a) March 30, 2008 and (b) the remainder of their original terms and all shares of restricted Common Stock shall be forfeited as of the Effective Date, and (ii) the options to purchase 8,333 shares of Common Stock (the “ Accelerated 2005 Option ”) that were granted to the Executive on April 15, 2005 (as part of a grant on such date of options to purchase a total of 25,000 shares of Common Stock) that are not vested as of the date of this Agreement shall immediately vest and become exercisable as of the Effective Date and remain outstanding and exercisable until December 31, 2008, notwithstanding any provisions to the contrary in any agreements and plans governing such options (the accelerated vesting provisions in this Section IIIF shall be deemed in full satisfaction of the Company’s obligations under Section 5.5(b)(iii) of the Employment Agreement and of any obligations of the Company in respect of the Accelerated 2005 Option). Any other outstanding equity awards held by the Executive as of the Effective Date will be treated in accordance with the terms of the applicable plans and award agreements governing such awards.

 


 

 

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G.

Outplacement Services .

With respect to the period beginning on the Effective Date and ending on April 1, 2008, the Company will reimburse the Executive for certain expenses incurred for professional transitional services with Right Management Consultants or other reputable outplacement services firm that is approved in advance by the Company. The Executive and the Company agree that the maximum aggregate amount with respect to which the Company will provide the reimbursement described in the preceding sentence shall not exceed $10,000. The Executive agrees to provide appropriate documentation for the expenses incurred and the Company agrees promptly to reimburse such expenses up to this amount, provided that such reimbursement shall be made no later than the last day of the taxable year following the taxable year during which the expense was incurred (the “ Reimbursement Date ”).

 

H.

280G Gross-Up Provision .

The Company and the Executive agree that the termination of the Executive’s employment is not in connection with a Change in Control or a change in ownership or effective control within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “ Code ”), and both parties agree to cooperate to rebut any such presumption. Exhibit C of the Employment Agreement is incorporated in full into this Agreement, and the Executive shall continue to be afforded the full benefits of such Exhibit C; provided that the reference to “this Agreement” in such Exhibit C shall be deemed to be a reference to this Agreement; and provided further that, any reimbursement pursuant to such Exhibit C shall be paid promptly when any such taxes are due but not later than the Reimbursement Date.

 

I.

Key Employee Retention Plan.

The distribution due to be paid to the Executive on February 12, 2008 pursuant to the Key Employee Retention Plan shall be payable in accordance with such plan and any bankruptcy court order regarding the same (including, without limitation, timing, method and form of payment (collectively, the “ KERP ”)), which, for the avoidance of doubt, the Company and the Executive agree shall be in the form of cash. The Executive acknowledges that, prior to the Effective Date, the Company has issued to him 5,648 shares of Common Stock, which issuance is in full satisfaction of the Company’s ongoing obligation in respect of Distribution 3 to the Executive under the KERP.

 

J.

Full Satisfaction

The Executive acknowledges and agrees that, except as otherwise set forth in this Agreement, the Executive is not entitled to any other compensation or benefits from the Company (including without limitation any severance or retirement compensation or benefits), and, as of and after the Effective Date, except as otherwise set forth in this Agreement, the Executive shall no longer participate in, accrue service credit or have contributions made on his behalf under any employee benefit plan sponsored by the Company in respect of periods commencing on and following the Effective Date, including without limitation any plan that is intended to qualify under Section 401(a) of the Code (a “ Qualified Plan ”); provided, that, except as expressly provided herein, nothing in this Agreement shall constitute a waiver by the

 


 

 

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Executive of his rights to vested benefits, if any, under any Qualified Plan or under any group health plan of the Company in respect of his services to the Company prior to the Effective Date.

 

K.

Release

The payments and benefits described in Sections IIIA, IIIB, IIIC and IIIF above shall be contingent on the Executive’s entering into the Release effective on or promptly after September 1, 2007 and n


 
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