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:
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.
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Termination of Employment; Resignation from
Positions; Consulting Services
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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.
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III.
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Payments and Benefits
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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
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.
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E.
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No Duplication of Benefits
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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.
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.
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Outplacement Services .
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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 ”).
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H.
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280G Gross-Up Provision .
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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.
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I.
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Key Employee Retention Plan.
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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.
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
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.
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