EXHIBIT 10.1
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (this "Agreement") is made as of
this 9th day of September, 2005 (the "Effective Date") between ▇▇▇▇▇▇▇ Company,
a Delaware corporation (the "Company"), and the undersigned employee (the
"Employee"). Certain capitalized terms used herein are defined in Section 6
hereof.
WHEREAS, the Company believes it to be in the best interests of the
Company and its shareholders to take action to promote work-force stability, to
reward performance and otherwise align employee interests with those of the
Company;
WHEREAS, accordingly the Company has determined to issue restricted
shares of Class B Common Stock (defined below) to the Employee in accordance
with the provisions of this Agreement; and
WHEREAS, the Board of Directors has determined, based on an
independent third party valuation, that the fair market value of the Class B
Common Stock, as of the date of this grant to be $2.65 per share.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. PURCHASE AND SALE OF EMPLOYEE STOCK.
(a) Upon execution of this Agreement and payment of the Original
Purchase Price (as hereinafter defined), the Company will issue to the Employee
that number of shares of Class B Common Stock, par value $0.01 per share, of the
Company (the "Class B Common Stock") set forth below such Employee's name on the
signature page attached hereto, for a purchase price of $0.01 per share (the
"Original Purchase Price"). All of such shares of Class B Common Stock purchased
by the Employee hereby are referred to herein as "Employee Stock." To secure the
Company's rights under the Repurchase Option in Section 3, the Company will
retain possession of the certificates representing the Employee Stock and will
provide the Employee with copies thereof.
(b) The parties agree that the fair market value of each share of
Employee Stock as of the date hereof is $2.65. The Employee will make an
effective election with the Internal Revenue Service (the "IRS") under Section
83(b) of the Code and the regulations promulgated thereunder in the form of
EXHIBIT A attached hereto. The Employee understands that under applicable law
such election must be filed with the IRS no later than thirty (30) days after
any acquisition of the Employee Stock to be effective. Pursuant to such an
election, the excess of the fair market value of the Employee Stock (which the
IRS may assert is different from the fair market value determined by the parties
or any independent valuation) covered by such election over the amount paid by
the Employee for the stock shall be treated as ordinary income received by the
Employee.
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(c) In connection with the acquisition of the Employee Stock
hereunder, the Employee represents and warrants to the Company that:
(i) the Employee Stock to be acquired by the Employee pursuant
to this Agreement will be acquired for the Employee's own account, for
investment only and not with a view to, or intention of, distribution
thereof in violation of the Securities Act, or any applicable state
securities laws, and the Employee Stock will not be disposed of in
contravention of the Securities Act or any applicable state securities
laws or this Agreement or the Securityholders' Agreement;
(ii) the Employee generally has such knowledge and experience
in business and financial matters and with respect to investments in
securities of privately held companies so as to enable the Employee to
understand and evaluate the risks and benefits of his or her investment in
the Employee Stock;
(iii) the Employee has no need for liquidity in his or her
investment in the Employee Stock and is able to bear the economic risk of
his or her investment in the Employee Stock for an indefinite period of
time and understands that the Employee Stock has not been registered or
qualified under the Securities Act or any applicable state securities
laws, by reason of the issuance of the Employee Stock in a transaction
exempt from the registration and qualification requirements of the
Securities Act or such state securities laws and, therefore, cannot be
sold unless subsequently registered or qualified under the Securities Act
or such state securities laws or an exemption from such registration or
qualification is available;
(iv) the Employee acknowledges that he or she is aware that
the Shares may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that Rule are met. Among
the current conditions for use of Rule 144 by certain holders is the
availability to the public of current information about the Company. Such
information is not now available, and the Company has no current plans to
make such information available; and
(v) the Employee has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Employee Stock and has had full access to or been provided with such other
information concerning the Company as the Employee has requested.
(d) This Agreement constitutes the legal, valid and binding
obligation of the Employee, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by the Employee does not
and will not conflict with, violate or cause a breach of any agreement, contract
or instrument to which the Employee is a party or any judgment, order or decree
to which the Employee is subject.
(e) As an inducement to the Company to issue the Employee Stock to
the Employee and as a condition thereto, the Employee acknowledges and agrees
that:
(i) neither the issuance of the Employee Stock to the Employee
nor any provision contained herein shall entitle the Employee to remain in
the employment of
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the Company and its Subsidiaries, if any, or affect the right of the
Company to terminate the Employee's employment at any time for any reason;
and
(ii) except as provided in any other agreement between the
Company and/or ▇▇▇▇▇▇▇ Company or any subsidiary thereof and the Employee,
the Company shall have no duty or obligation to disclose to the Employee,
and the Employee shall have no right to be advised of, any material
information regarding the Company and its Subsidiaries, if any, at any
time prior to, upon or in connection with the forfeiture of the Employee
Stock upon the termination of the Employee's employment with the Company
or a subsidiary thereof.
(f) In connection with the issuance and sale by the Company to the
Employee of the Employee Stock, the Company represents and warrants that:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own,
lease and operate the assets used in its business, to carry on its
business as presently conducted, to enter into this Agreement, to perform
its obligations hereunder, and to consummate the transactions contemplated
hereby;
(ii) the Company has taken all corporate action necessary to
authorize its execution and delivery of this Agreement, its performance of
its obligations thereunder, and its consummation of the transactions
contemplated thereby;
(iii) this Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms; and
(iv) the Employee Stock, when issued in accordance with this
Agreement, will be duly authorized and validly issued, fully paid and
nonassessable and will be free of all Encumbrances created by or through
the Company. For purposes of this clause, "Encumbrance" means any security
interest, mortgage, lien, pledge, charge, easement, reservation,
restriction, or similar right of any third party.
2. VESTING OF EMPLOYEE STOCK.
(a) General.
(i) Vesting. The shares of Employee Stock granted hereunder (the
"Shares") will be deemed "vested" (the "Vested Shares") in accordance with this
Section 2, based upon the Company's achievement of the EBITDA targets set forth
below for each of the Company's fiscal years ending December 31, 2005; December
30, 2006; December 29, 2007 and December 27, 2008 (the "Measurement Years").
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EBITDA Targets
(dollars in millions)
CUMULATIVE
MEASUREMENT TARGET TARGET 90% OF TARGET 90% OF CUMULATIVE ELIGIBLE
YEARS EBITDA EBITDA EBITDA TARGET EBITDA SHARES
----------- ------ ---------- ------------- ----------------- ---------------------
2005 $160.3 $160.3 $144.3 $144.3 25% of Employee Stock
2006 $180.8 $341.1 $162.7 $307.0 25% of Employee Stock
2007 $193.8 $534.9 $174.4 $481.4 25% of Employee Stock
2008 $210.0 $744.9 $189.0 $670.4 25% of Employee Stock
The minimum EBITDA targets set forth above shall be appropriately adjusted by
the Company's Board for acquisitions and dispositions made by the Company
(whether by purchase or sale of assets, merger or otherwise) and such
adjustments shall take into account the pro forma annual EBITDA of any acquired
business.
(A) Performance Based Vesting. At the end of each Measurement
Year, on the Measurement Date, the number of Shares set forth above shall be
eligible to vest (the "Eligible Shares"). On each Measurement Date, 50% of the
Eligible Shares shall become Vested Shares if at least 90% of the Target EBITDA
amount was met for the prior Measurement Year. If more than 90% of the Target
EBITDA amount was met for the prior Measurement Year, then the Eligible Shares
shall become Vested Shares on a straight line basis such that an additional 5%
of Eligible Shares shall become Vested Shares for each 1% that actual EBITDA
exceeds 90% of the Target EBITDA amount.
(B) Catch Up. On the fourth Measurement Date, in addition to
the vesting provided in subsection (A) above, the Employee shall be eligible to
"catch-up" any missed vesting due to the Company's failure to meet any annual
EBITDA target if the cumulative EBITDA targets set forth above are met;
provided, that (a) at least 90% of the annual EBITDA target in the final
Measurement Year is met and (b) the actual EBITDA for the final Measurement Year
of vesting exceeds the actual EBITDA for the immediately preceding Measurement
Year (collectively, the "Catch-Up Targets"). If 90% of the Cumulative Target set
forth above is met, then 50% of the Total Shares that are Eligible Shares but
which did not previously become Vested Shares (the "Missed Shares") shall become
Vested Shares. If over 90% of the Cumulative EBITDA Target above is met, then a
number of Missed Shares will become Vested Shares, determined on a straight line
basis such that an additional 5% of the Missed Shares will become Vested Shares
for each 1% that actual Cumulative EBITDA exceeds 90% of the Cumulative EBITDA
Target.
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(ii) Change of Control. Shares that are not Vested Shares will
accelerate as set forth below upon a Change of Control solely if the Company (a)
achieves at least 90% of the Target EBITDA for the Measurement Year immediately
preceding the year in which the Change of Control occurs, and (b) the actual
EBITDA for the Measurement Year immediately preceding the year in which the
Change of Control occurs exceeds the actual EBITDA for the preceding year. If
(x) the conditions set forth in clauses (a) and (b) above are met, and (y) the
Company achieves 90% of the Cumulative EBITDA Target above for the Measurement
Year completed immediately prior to the Change of Control, then 50% of the
Missed Shares and 50% of the shares that are not Eligible Shares shall become
Vested Shares. If the Company achieves more than 90% of the Cumulative EBITDA
Target above, then a number of Missed Shares will become Vested Shares,
determined on a straight line basis such that an additional 5% of the Missed
Shares and 5% of the shares that are not Eligible Shares will become Vested
Shares for each 1% that actual Cumulative EBITDA exceeds 90% of the Cumulative
EBITDA Target.
(b) In the event the Employee ceases to be employed by the Company
or any of its Subsidiaries on a full-time basis for any reason, then (i) all
shares of Employee Stock shall cease vesting effective as of the date upon which
the Employee ceases to be so employed (the "Termination Date") and, (ii) in the
event that the Company achieves the Target EBITDA with respect to the
Measurement Year in which such termination occurs, then the Eligible Shares with
respect to such year multiplied by a fraction, the numerator of which shall
equal the number of whole months during such year that the Employee remained
employed with the Company and the denominator of which is 12, shall become
Vested Shares as of the end of such year.
(c) Notwithstanding the vesting terms set forth in clause (a) above,
if the Employee remains employed on a full-time basis with the Company or any of
its Subsidiaries from the Effective Date through the eighth anniversary of the
Effective Date, all Employee Stock subject to vesting pursuant to clauses (a)(i)
shall automatically and immediately vest on the eighth anniversary of the
Effective Date.
3. REPURCHASE OF SHARES.
(a) In the event that the Employee ceases to be employed by the
Company or any of its Subsidiaries on a full-time basis for any reason, then all
shares of Employee Stock (whether held by the Employee or by one or more of the
Employee's transferees) which as of the date of termination:
(i) have not vested pursuant to Section 2 hereof, will be
subject to repurchase by the Company, at its option (the "Non-Vested
Repurchase Option"), for the lower of the(A) Original Purchase Price of
the Employee Stock and (B) Fair Market Value as of the date of repurchase;
(ii) have vested pursuant to Section 2 hereof, will be subject
to repurchase by the Company, at its option (the "Vested Repurchase
Option"), for Fair Market Value as of the date of repurchase.
(b) In the event of a Change of Control, then all shares of Employee
Stock (whether held by the Employee or by one or more of the Employee's
transferees) which, as of the
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date of such Change of Control, have not become Vested Shares pursuant to
Section 2, will be subject to repurchase by the Company, at its option (the
"Non-Vested Change of Control Repurchase Option") for the lower of the Original
Purchase Price of the Employee Stock and Fair Market Value as of the date of
repurchase.
(c) The Non-Vested Change of Control Repurchase Option, together
with the Non-Vested Repurchase Option and the Vested Repurchase Option, are
referred to collectively as the "Repurchase Options." The Repurchase Options
shall be exercised by the Company, or its designee, from time to time, by
delivering to the Employee a written notice of exercise and a check in the
amount of the Original Purchase Price or Fair Market Value, as determined in
accordance with Sections 3(a) and (b) above. Upon delivery of such notice and
payment of the purchase price as described above, the Company, or its designee,
shall become the legal and beneficial owner of the shares of Employee Stock
being repurchased and all rights and interest therein or related thereto, and
the Company, or its designee, shall have the right to transfer to its own name
the number of shares of Employee Stock being repurchased without further action
by the Employee or any of his or her transferees. If the Company or its designee
elect to exercise the repurchase rights pursuant to this Section 3 and the
Employee or his or her transferee fails to deliver the shares of Employee Stock
in accordance with the terms hereof, the Company, or its designee, may, at its
option, in addition to all other remedies it may have, deposit the purchase
price in an escrow account administered by an independent third party (to be
held for the benefit of and payment over to the Employee or his or her
transferee in accordance herewith), whereupon the Company shall by written
notice to the Employee cancel on its books the certificates(s) representing such
shares of Employee Stock registered in the name of the Employee and all of the
Employee's or his or her transferee's right, title, and interest in and to such
shares of Employee Stock shall terminate in all respects.
(d) Notwithstanding the foregoing, if at any time the Company elects
to purchase any Class B Common Stock pursuant to this Section 3, the Company
shall pay the purchase price for the Class B Common Stock it purchases (i)
first, by offsetting indebtedness, if any, owing from such Employee to the
Company and (ii) then, by the Company's delivery of cash for the remainder of
the purchase price, if any, against delivery of the certificates or other
instruments representing the Class B Common Stock so purchased, duly endorsed;
provided that, if any such cash payment at the time such payment is required to
be made would result (A) in a violation of any law, statute, rule, regulation,
policy, order, writ, injunction, decree or judgment promulgated or entered by
any federal, state, local or foreign court or governmental authority applicable
to the Company or any of its subsidiaries or any of its or their property or (B)
after giving effect thereto, a Financing Default, or (C) if the Board determines
in good faith that immediately prior to such purchase there shall exist a
Financing Default which prohibits such purchase, dividend or distribution ((A)
through (C) collectively the "Cash Deferral Conditions"), the portion of the
cash payment so affected may be made by the Company's delivery of a promissory
note or senior preferred shares of the Company with a liquidation preference
equal to the balance of the purchase price. The promissory note or senior
preferred shares shall accrue interest or yield, as the case may be, annually at
the "prime rate" published in The Wall Street Journal on the date of issuance,
which interest or yield, as the case may be, shall be payable at maturity or
upon payment of distributions by the Company. The value of each such senior
preferred share shall as of its issuance be deemed to equal (A) the portion of
the cash payment paid by the issuance of such preferred shares divided by (B)
the number of senior preferred
6
shares so issued. Any senior preferred shares or the promissory note shall be
redeemed or payable when and to the extent the Cash Deferral Condition which
prompted their issuance no longer exists.
(e) In the event that Employee Stock is repurchased pursuant to this
Section 3, the Employee and his or her successors, assigns or Representatives
shall take (at the Company's expense) all steps necessary and desirable to
obtain all required third-party, governmental and regulatory consents and
approvals and take all other actions necessary and desirable to facilitate
consummation of such repurchase in a timely manner.
4. LEGEND.
The certificates representing the Employee Stock will bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
REPURCHASE AND CERTAIN OTHER AGREEMENTS SET FORTH IN A RESTRICTED STOCK
AGREEMENT DATED AS OF SEPTEMBER 9, 2005, BETWEEN THE COMPANY AND THE OTHER
SIGNATORY THERETO. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER
HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.
THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, OR ENCUMBRANCE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF THE HOLDER OF
SUCH SECURITIES IN RESPECT OF THE ELECTION OF DIRECTORS ARE SUBJECT TO A
SECURITYHOLDERS' AGREEMENT DATED DECEMBER 19, 2003 AMONG ▇▇▇▇▇▇▇ COMPANY
AND CERTAIN HOLDERS OF ITS OUTSTANDING CAPITAL STOCK. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER
OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF ▇▇▇▇▇▇▇ COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAWS. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT OR LAWS."
5. RESTRICTIONS ON TRANSFER, CONVERSION AND VOTING.
(a) The Company and the Employee acknowledge and agree that the
shares of Employee Stock are subject to and restricted by the Securityholders'
Agreement and with respect to such shares of Employee Stock, the Employee shall
be an "Employee" or "Senior Manager", as the case may be, and as each such term
is used in the Securityholders' Agreement. Notwithstanding anything to the
contrary contained in the Securityholders' Agreement, no shares of Employee
Stock that have not become Vested Shares pursuant to Section 2 hereof may be
transferred to any Person and no shares of Employee Stock that are Vested Shares
may be
7
transferred to any Person who is not an Affiliate of the Employee. The Vested
Shares may be transferred by will or the laws of descent and distribution.
(b) Prior to any Transfer, the transferee shall agree, by execution
of a Joinder Agreement, to be bound by this Agreement as holder of Employee
Stock and by the Securityholders' Agreement as an Employee or Senior Manager, as
the case may be. Any Transfer or attempted Transfer of any Employee Stock in
violation of the preceding sentence shall be void, and the Company shall not
record such Transfer on its books or treat any purported transferee of such
Employee Stock as the owner of such stock for any purpose.
(c) The Employee agrees that so long as the Employee owns shares of
Employee Stock which have not become Vested Shares pursuant to Section 2 hereof,
the Employee shall be obligated to vote all of his, her or its shares of
Employee Stock which have not become Vested Shares pursuant to Section 2 hereof
in the same manner and proportions as the votes cast by the holders of a
majority of the Company's voting capital stock not subject to such repurchase
rights. If the Employee fails or refuses to vote his, her or its shares of
Employee Stock which have not become Vested Shares pursuant to Section 2 hereof
as required by, or votes his, her or its shares of Employee Stock which have not
become Vested Shares pursuant to Section 2 hereof in contravention of this
Section 5(c), then the Employee hereby grants to each of the President and
Treasurer of the Company, acting solely in his or her capacity as such, an
irrevocable proxy, coupled with an interest, to vote such shares in accordance
with Section 5(c).
6. DEFINITIONS.
Capitalized terms used herein, but not defined herein, shall have
the meanings given to them in the Employment Agreement. The following terms
shall have the meanings ascribed below:
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person
or, with respect to any individual, such individual's spouse and descendants
(whether natural or adopted) and any trust, partnership, limited liability
company or similar vehicle established and maintained solely for the benefit of
(or the sole members or partners of which are) such individual, such
individual's spouse and/or such individual's descendants.
"Board" means the Board of Directors of the Company.
"Change of Control" shall mean the consummation of a transaction,
whether in a single transaction or in a series of related transactions that are
consummated contemporaneously (or consummated pursuant to contemporaneous
agreements), with any other party or parties, other than an Affiliate of THL, on
an arm's-length basis, pursuant to which (a) a party or group (as defined under
Rule 13d under the Securities Exchange Act of 1934, as amended) who is not a
stockholder of the Company on the Effective Date, acquires, directly or
indirectly (whether by merger, stock purchase, recapitalization, reorganization,
redemption, issuance of capital stock or otherwise), more than 50% of the voting
stock of the Company, (b) such party or parties, directly or indirectly, acquire
assets constituting all or substantially all of the assets of the Company and
its subsidiaries on a consolidated basis, or (c) prior to an initial public
offering of the Company
8
common stock pursuant to an offering registered under the Securities Act, ▇▇▇▇▇▇
▇. ▇▇▇ Equity Fund V, L.P., a Delaware limited partnership, and its affiliates
cease to have the ability to elect, directly or indirectly, a majority of the
Board.
"Class A Common Stock" means the Company's Class A Common Stock,
$0.01 par value per share.
"Class B Common Stock" has the meaning set forth in Section 1(a)
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Credit Agreement" shall mean the Credit and Guaranty Agreement,
dated as of December 19, 2003 by and among THL-SC Bedding Company, certain of
its subsidiaries, as Guarantors, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P., as sole
bookrunner, joint lead arranger and co-syndication agent, certain Lenders, UBS
Securities LLC, as joint lead arranger and co-syndication agent, and Deutsche
Bank, A.G., Cayman Islands Branch, as administrative agent for Lenders, as
amended, modified, restated or refinanced from time to time.
"EBITDA" has the meaning set forth in the Credit Agreement.
"Employee Stock" has the meaning set forth in Section 1(a) hereof.
The Employee Stock will continue to be Employee Stock in the hands of any holder
other than the Employee (except for the Company and except for transferees in a
Public Sale) and, except as otherwise provided herein, each such other holder of
the Employee Stock will succeed to all rights and obligations attributable to
the Employee as a holder of the Employee Stock hereunder. The Employee Stock
will also include shares of the Company's capital stock issued with respect to
the Employee Stock by way of a stock split, stock dividend or other
recapitalization.
"Fair Market Value" shall be determined by the Board in good faith.
Upon such determination, the Company shall promptly provide the Employee with
notice of the Fair Market Value so determined (the "Board Notice"). In the event
of a determination of Fair Market Value with respect to Class B Common Stock
owned by a Senior Manager, such Senior Manager shall have the right to contest
such determination in good faith, by delivery of written notice to the Company
within ten (10) days of delivery of the Board Notice. If the Senior Manager does
not notify the Company of any disagreement therewith, then the Fair Market Value
shall be as set forth in the Board Notice. If the Senior Manager does notify the
Company of his or her disagreement with the Fair Market Value set forth in the
Board Notice within such 10-day time period, then the Company must retain an
independent third party appraiser to make such Fair Market Value determination
(the "Final Determination"), and such Final Determination shall govern;
provided, however, that if the Final Determination of Fair Market Value equals
less than 110% of the Fair Market Value set forth in the Board Notice, then the
Senior Manager shall pay for all costs and expenses of the third party
appraiser.
"Financing Default" means any event of default or breach under (i)
that certain Credit and Guaranty Agreement, dated as of December 19, 2003 by and
among THL-SC Bedding Company, certain of its subsidiaries, as Guarantors,
▇▇▇▇▇▇▇ Sachs Credit Partners, L.P., as sole bookrunner, joint lead arranger and
co-syndication agent, certain Lenders, UBS Securities LLC, as joint lead
arranger and co-syndication agent, and ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.,
▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Branch, as administrative agent for Lenders, as amended,
modified, restated or refinanced from time to time, (ii) that certain senior
unsecured floating rate loan facility by and among THL-SC Bedding Company,
certain of its subsidiaries, certain lenders, party thereto and Deutsche Bank,
A.G., Cayman Islands Branch, as administrative agent, as amended, modified,
restated or refinanced from time to time, (iii) the covenant contained in the
Indenture which permits repurchases by the Company of employee stock not
exceeding a specified amount in the aggregate, or (iv) any other similar notes
or instruments that the Company or its Subsidiaries may issue from time to time.
"Fully Diluted Shares" means, as of any date of determination, the
number of shares of Class A Common Stock and Class B Common Stock outstanding,
plus (without duplication) shares of Class A Common Stock and Class B Common
Stock issuable, whether at such time or upon the passage of time or the
occurrence of future events, upon the exercise, conversion or exchange of all
then-outstanding rights, warrants, options, convertible securities, or
exchangeable securities or indebtedness, or other rights, exercisable for or
convertible or exchangeable into, directly or indirectly, Class A Common Stock
or Class B Common Stock or securities exercisable for or convertible or
exchangeable into Class A Common Stock or Class B Common Stock, as the case may
be, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"Indenture" shall mean that certain Indenture, dated as of December
19, 2003, governing the Company's Senior Subordinated Notes due 2013 as amended,
modified, restated or refinanced from time to time.
"Measurement Date" shall mean the date upon which the Company shall
have received its audited financial statements for the prior Measurement Year,
beginning with the Measurement Year ending December 31, 2005.
"Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Representative" means, with respect to the deceased Employee, the
duly appointed, qualified and acting personal representative (or personal
representatives collectively) of the estate of the deceased Employee (or portion
of such estate that includes Employee Stock), whether such personal
representative holds the position of executor, administrator or other similar
position qualified to act on behalf of such estate.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal law then in force.
"Securityholders' Agreement" means the Securityholders' Agreement
dated December 19, 2003 between the Company and certain stockholders of the
Company, as amended, modified or supplemented from time to time.
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"Senior Manager" shall mean each of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and/or any other Persons
designated by the Board as Senior Managers (collectively, the "Senior
Managers").
"THL" means ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P., a Delaware limited
partnership, ▇▇▇▇▇▇ ▇. ▇▇▇ Parallel Fund V, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Cayman Fund V,
L.P., 1997 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust, ▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited
Partnership, ▇▇▇▇▇▇ Investments Holdings, LLC, ▇▇▇▇▇▇ Investments Employees'
Securities Company I LLC, and ▇▇▇▇▇▇ Investments Employees' Securities Company
II, LLC.
"Transfer" means the sale, transfer, assignment, pledge or other
disposal (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law) of any Employee Stock.
7. GENERAL PROVISIONS.
(a) Severability. It is the desire and intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(b) Entire Agreement. This Agreement and the Securityholders'
Agreement embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(c) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Employee, the Company, and their respective successors, assigns, heirs,
representative and estate, as the case may be (including subsequent holders of
Employee Stock); provided that the rights and obligations of the Employee under
this Agreement shall not be assignable except in connection with a permitted
transfer of Employee Stock hereunder.
(e) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
11
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTS PROVISION OR RULE
(WHETHER OF THE STATE OF DELAWARE, OR ANY OTHER JURISDICTION), THAT WOULD CAUSE
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN
FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL
CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER
SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE
LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(f) Jurisdiction and Venue. SUBJECT TO THE TERMS OF THIS AGREEMENT,
THE PARTIES AGREE THAT ANY AND ALL ACTIONS ARISING UNDER OR IN RESPECT OF THIS
AGREEMENT SHALL BE LITIGATED IN THE FEDERAL OR STATE COURTS IN GEORGIA. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE
PERSONAL JURISDICTION OF SUCH COURTS FOR ITSELF, HIMSELF, OR HERSELF AND IN
RESPECT OF ITS, HIS OR HER PROPERTY WITH RESPECT TO SUCH ACTION. EACH PARTY
AGREES THAT VENUE WOULD BE PROPER IN ANY OF SUCH COURTS, AND HEREBY WAIVES ANY
OBJECTION THAT ANY SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE
RESOLUTION OF ANY SUCH ACTION. THE PARTIES FURTHER AGREE THAT THE MAILING BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED
BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST
THEM, WITHOUT THE NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE
OR RULE OF COURT.
(g) Remedies. Each of the parties to this Agreement and any such
Person granted rights hereunder whether or not such Person is a signatory hereto
shall be entitled to enforce its rights under this Agreement specifically to
recover damages and costs (including reasonable attorney's fees) for any breach
of any provision of this Agreement and to exercise all other rights existing in
its favor. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that any party and any such Person granted rights hereunder whether or not such
Person is a signatory hereto may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or other
injunctive relief (without posting any bond or deposit) in order to enforce or
prevent any violations of the provisions of this Agreement.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and the
Employee and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall be construed as a waiver of such provisions
or affect the validity, binding effect or enforceability of this Agreement or
any provision hereof.
(i) Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, transmitted via facsimile,
mailed by first class mail (postage prepaid and return receipt requested) or
sent by reputable overnight courier service (charges prepaid) to the recipient
at the address below indicated or at such other address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices
12
will be deemed to have been given hereunder and received when delivered
personally, when received if transmitted via facsimile, five (5) days after
deposit in the U.S. mail and one (1) day after deposit with a reputable
overnight courier service.
If to the Company, to:
▇▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer and General Counsel
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
If to the Employee, to the address set forth underneath the
Employee's name on the signature pages hereto.
(j) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in the
state in which the Company's chief executive office is located, the time period
for giving notice or taking action shall be automatically extended to the
business day immediately following such Saturday, Sunday or holiday.
(k) Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements contained herein shall survive the
consummation of the transactions contemplated hereby and the termination of this
Agreement indefinitely.
(l) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(m) Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
(n) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
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(o) Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
IN WITNESS WHEREOF, the parties hereto have executed this Restricted
Stock Agreement as of the date first written above.
▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
14
EMPLOYEE:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Signature
Address: _________________________________
_________________________________
_________________________________
Shares of Employee Stock Purchased: 66,668
EXHIBIT A
[SEE THE ATTACHED 83(b) ELECTION FORM]