SIMMONS COMPANY AMENDMENT NO. 1 TO THE SECURITYHOLDERS’ AGREEMENT
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COMPANY
AMENDMENT
NO. 1 TO THE
This
Amendment No. 1 to the Securityholders’ Agreement (the
“Amendment”)
is entered into as of November 30th, 2006, by and among ▇▇▇▇▇▇▇ Company, a
Delaware corporation (the “Company”),
and each of those entities listed below (the “Investors”
and each individually an “Investor”). All
capitalized terms used in this Amendment shall have the respective meanings
given to such terms in the Agreement (as defined below), unless otherwise
defined herein.
Recitals
Whereas,
the Company and the Investors entered into that certain Securityholders’
Agreement, dated as of December 19, 2003, by and among the Company, the
Investors and the other parties thereto (the “Agreement”);
Whereas,
the Company and the Investors desire to amend the Agreement in certain respects;
Whereas,
pursuant to Section 7.1 of the Agreement, the Agreement may be amended in
writing by each of the Company and holders of a majority of the Shares;
and
Whereas,
the Investors hold a majority of the Shares.
Now,
Therefore,
in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the parties hereto agree as follows:
1. The
Agreement is hereby amended as follows:
(a) Definition
of Call Price.
The definition of “Call Price” is hereby deleted and replaced with the
following:
“Call
Price”
means (A) the per share Fair Market Value measured as of the date of such Senior
Manager’s or Employee’s termination of employment, with respect to any Senior
Manager whose employment is terminated pursuant to Section 3.5(a)(i) or due
to
death or “incapacity” (as such term is defined in the respective Senior
Manager’s employment agreement) or any Employee who is terminated by the Company
without Cause or due to death or Disability, and (B) the lesser of (x) his
or
her per share Investment Amount and (y) the per share Fair Market Value measured
as of the date of such Employee’s or Senior Manager’s termination of employment,
with respect to any Employee who is terminated by the Company for Cause or
voluntarily leaves the Company or any Senior Manager who is terminated by the
Company for “cause” (as such term is defined in the respective Senior Manager’s
employment agreement) or voluntarily leaves the Company, other than for “good
reason” (as such term is defined in the respective Senior Manager’s employment
agreement).
(a) Definition
of Disability.
The following definition of “Disability” is hereby added to the
Agreement:
“Disability”
means the Employee shall have been unable to perform his or her duties by reason
of any physical or mental illness, injury or other incapacity (a) for any period
of sixty (60) consecutive days or (b) for a total of one hundred twenty (120)
days in any period of twelve (12) consecutive calendar months, in the reasonable
judgment of the Board, after consultation with such experts, if any, as the
Board may deem necessary or advisable.
2. This
Amendment shall be governed in all respects by the laws of the State of
Delaware.
3. This
Amendment may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one
instrument.
4. Except
as expressly modified herein, the Agreement, as amended by this Amendment,
shall
remain in full force and effect.
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REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
In
Witness Whereof,
the
parties hereto have executed this Amendment
No. 1 to the Securityholders’ Agreement
as of the date set forth in the first paragraph above.
COMPANY:
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COMPANY
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Executive Vice President and Chief Financial Officer
INVESTORS:
▇▇▇▇▇▇
▇. ▇▇▇ EQUITY FUND V, L.P.
By:
THL Equity Advisors V, LLC, its general partners
By:
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole member
By:
▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general partner
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director
▇▇▇▇▇▇
▇. ▇▇▇ PARALLEL FUND V, L.P.
By:
THL Equity Advisors V, LLC, its general partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole member
By:
▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general partner
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director
▇▇▇▇▇▇
▇. ▇▇▇ CAYMAN FUND V, L.P.
By:
THL Equity Advisors V, LLC, its general partner
By:
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole member
By:
▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general partner
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director