SECOND AMENDMENT TO CHANGE IN CONTROL PROTECTION AGREEMENT

SECOND AMENDMENT TO CHANGE IN CONTROL  

PROTECTION AGREEMENT

THIS AMENDMENT (“Amendment”) is effective as of May 12, 2008, and is entered into between Foamex International Inc., a Delaware corporation (the “Company”) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Executive”). Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Agreement (defined below).

WHEREAS, Executive and the Company entered into a change in control protection agreement dated as of December 20, 2002, as amended on January 31, 2007 (the “Agreement”), pursuant to which Executive receives additional employment security in the event that the Company undergoes a change in control.

WHEREAS, the Company and Executive desire to amend the Agreement as provided in this Amendment and agree that all other terms and conditions of the Agreement shall otherwise remain in place, except as expressly amended herein.

NOW THEREFORE, for and in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Amendment hereby agree as follows:

I.           Amendments to Agreement. The parties hereby agree to amend the Agreement as follows:

A.        Section 1(b)(iv) of the Agreement shall be amended by adding at the end of the last sentence thereof the following:

“In addition, the parties hereby agree that notwithstanding anything to the contrary set forth herein, the consummation of the transactions contemplated by the Equity Commitment Agreement, dated April 1, 2008, between the Company and each of ▇.▇. ▇▇▇▇ Laminar Portfolios, L.L.C., Sigma Capital Associates, LLC, CDGO, LLC and Q Funding III L.P., will not constitute a Change in Control for purposes of this Agreement; provided that, notwithstanding the foregoing nothing shall in any way operate to the limit the rights that Executive would otherwise be entitled to under Section 6 of this Agreement.”

A.        Executive acknowledges and agrees that, by signing this Amendment, notwithstanding any provision of the Agreement or the Amendment to the contrary, he waives any right or alleged right that he has, or may have, to (i) the vesting of Executive’s outstanding stock options pursuant to the Agreement or on account of any claim that the Company breached the Agreement, including any right to accelerated vesting of outstanding stock options in connection therewith, based on, arising out of or in connection with any fact, event, occurrence, omission or other matter or thing occurring prior to the date of this Amendment, including, without limitation, any fact, event, occurrence, omission or other matter or thing relating to the negotiation and execution of the transactions contemplated by the Equity Commitment

 

 

Agreements, dated April 1, 2008, between the Company and each of ▇.▇. ▇▇▇▇ Laminar Portfolios, L.L.C., Sigma Capital Associates, LLC, CDGO, LLC and Q Funding III L.P (the “Transaction”), or (ii) the accelerated vesting of Executive’s outstanding stock options upon the consummation of the Transaction.

B.        Executive acknowledges that he has reviewed the provisions of this Amendment and considered the effect of these provisions on the Agreement, has had adequate opportunity to consult with counsel with respect to these provisions and fully and freely consents to the terms of this Amendment.

A.        This Amendment may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

B.        Except as provided herein, the provisions of the Agreement are and shall remain in full force and effect.

C.        This Amendment shall become effective as of the date first above written.

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IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by a duly authorized officer of the Company, and Executive has executed this Amendment, each as of the day and year first above written.