EXHIBIT 10.18
ESOP STOCK SALE AGREEMENT
This ESOP STOCK SALE AGREEMENT (this "Agreement") is dated as of
November 21, 2003 by and among XXXXXXX HOLDINGS, INC., a Delaware corporation
(the "Company"), STATE STREET BANK AND TRUST COMPANY, solely in its capacity as
trustee (the "Trustee") of the Xxxxxxx Company Employee Stock Ownership Trust
(the "ESOT"), and THL Bedding Company, a Delaware corporation (the "Buyer").
WHEREAS, the ESOT is, as of the date hereof, the record and beneficial
owner of 3,382,739.58 shares of common stock of the Company, all of which shares
(the "ESOP Shares") are, pursuant to the terms of the Xxxxxxx Company Employee
Stock Ownership Plan, as amended and restated effective January 17, 1989, and as
further amended through the date hereof (the "ESOP"), allocated to the accounts
of ESOP participants;
WHEREAS, the Company, Xxxxxxx Holdings, LLC (the "Investor"), the
Management Investors (as defined therein) (collectively, the "Sellers"), and the
Buyer have entered into that certain Stock Purchase Agreement dated as of
November 17, 2003 (the "Primary Agreement") that contemplates the purchase by
the Buyer of shares of common stock of the Company owned by the Sellers; and
terms used and not otherwise defined herein have the meanings ascribed to such
terms in the Primary Agreement; and
WHEREAS, subject to the satisfaction of the provisions set forth in
Section 2.1(b) of the Stockholders' Agreement, the Trustee has agreed to sell
the ESOP Shares to the Buyer.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representatives, warranties, agreements and covenants set forth
herein, the Buyer, the Company and the Trustee, each intending to be legally
bound, hereby agree as follows:
1. PURCHASE AND SALE OF THE ESOP SHARES.
1.1 Purchase and Sale. Subject to compliance with all the terms
and conditions of this Agreement, and in reliance on the representations and
warranties set forth herein, on the Closing Date (as defined below), the Trustee
will sell (the "Sale") to the Buyer, and the Buyer will purchase from the
Trustee, each ESOP Share owned by the ESOT on the Closing Date (which aggregate
number of shares will be 3,382,739.58 shares), for the Purchase Price per Share
(as defined in Section 1.2 of the Primary Agreement) in cash.
1.2 The Closing.
(a) Subject to the terms and conditions hereof, the
closing (the "Closing") of the Sale will occur at the same
time and place as the closing of the transactions contemplated
by the Primary Agreement.
(b) At the Closing, the Trustee will deliver to the
Buyer one or more stock certificates representing the ESOP
Shares to be purchased by the Buyer pursuant to Section 1.1
above in proper form for transfer, accompanied by appropriate
stock powers duly executed in blank, together with any and all
necessary documentary or transfer tax stamps duly affixed and
cancelled and otherwise in form satisfactory to the Buyer.
(c) At the Closing, the Buyer will deliver to the
Trustee an amount
equal to the product of the Purchase Price per Share
multiplied by the number of ESOP Shares sold pursuant to
Section 1.1 above, in cash by wire transfer of immediately
available funds to such bank account as the Trustee will
designate in writing to the Buyer at least two business days
prior to the Closing Date.
2. REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
As an inducement to the Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Trustee represents and
warrants, as of the date hereof and as of the Closing Date, to the Buyer as
follows:
2.1 Authority and Related Matters. The Trustee has the legal
capacity, power and authority (including full organizational power and
authority) to execute and deliver this Agreement and each other agreement,
document or instrument contemplated by this Agreement and to perform its
obligations hereunder. All actions or proceedings to be taken by or on the part
of the Trustee to authorize and permit the execution and delivery by the ESOT of
this Agreement and the instruments required to be executed and delivered by it
pursuant hereto, the performance by the ESOT of its obligations hereunder and
the consummation by the ESOT of the transactions contemplated hereby, have been
duly and properly taken. This Agreement has been duly executed and delivered by
Trustee and constitutes the legal, valid and binding obligation of the ESOT,
enforceable against the ESOT in accordance with its terms.
2.2 Title to Shares. The ESOT is the record and beneficial owner
of and has good and marketable title to, the ESOP Shares, free and clear of any
Lien, except for restrictions on transfer (a) contained in that certain
Stockholders Agreement dated as of October 29, 1998 among the Company, Xxxxxxx
Company ("Xxxxxxx"), the Investor and the Trustee (the "Stockholders Agreement")
or (b) imposed by applicable securities laws. Neither the Trustee nor the ESOT
are party to any option, warrant, purchase right or other contract or commitment
that requires either of them to sell, transfer or otherwise dispose of any
capital stock of the Company, except for this Agreement and the Stockholders
Agreement and the ESOP. The Trustee and the ESOT have full right, power and
authority to enter into this Agreement and to sell, transfer and deliver the
ESOP Shares.
2.3 No Violation or Approval. The execution, delivery and
performance by the Trustee of this Agreement and the consummation by the ESOT of
the transactions contemplated hereby will not result in a breach or violation
of, or a default under, (a) any statute applicable to the ESOT (provided that
the Trustee makes no representation or warranty with respect to ERISA), (b) any
agreement to which the ESOT is a party or by which the ESOT or any of the ESOP
Shares or other ESOT assets is bound, or (c) any order, judgment, decree, rule
or regulation of any court or any governmental agency or body having
jurisdiction over the ESOT or any of the ESOP Shares or other ESOT assets. No
consent, approval, order or authorization of, or filing with, any governmental
authority or entity or any other party is required of the ESOT in connection
with the execution and delivery by the Trustee of this Agreement or the
consummation of any of the transactions contemplated hereby, except for required
filings under the HSR Act or any similar foreign filings.
2.4 Litigation. As of the date hereof, there is no action, suit or
proceeding against, or to the knowledge of the Trustee threatened against or
affecting, the ESOT or its properties, assets or business, before any court or
arbitrator or any governmental body, agency or official
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that in any manner challenges or seeks to prevent, enjoin, alter or materially
delay any of the transactions contemplated thereby.
2.5 Brokers. No broker or finder has been engaged by the Trustee
or the ESOT in connection with the transactions contemplated by this Agreement
and neither the Trustee nor the ESOT has any liability or obligation to pay any
fees or commissions to any broker, finder or agent in connection herewith for
which Buyer could become liable or obligated, except that the Trustee has
engaged Willamette Management Associates ("WMA") in connection with the
transactions contemplated by this Agreement and the Primary Agreement.
2.6 Fairness Opinion. On the date hereof, the ESOT has received
the fairness opinion (the "ESOT Fairness Opinion") of WMA to the effect that the
consideration to be received by the ESOT for the ESOP Shares in connection with
the transactions contemplated by this Agreement and the Primary Agreement is not
less than fair value and that such transactions, considered as a whole, are fair
to the ESOP from a financial point of view, and such opinion has not been
withdrawn, qualified or otherwise modified.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
As an inducement to the Trustee to enter into this Agreement and to
consummate the transactions contemplated hereby, the Buyer represents and
warrants to the Trustee as follows:
3.1 Representations and Warranties. The representations and
warranties of the Buyer under the Primary Agreement are true and correct as of
the date thereof except for (i) representations and warranties that speak as of
a specific date or time, which need only be true and correct as of such date or
time and (ii) representations and warranties that are not qualified by a
Material Adverse Effect or otherwise by material adversity, which need be true
and correct in all material respects only.
3.2 Authorization. The Buyer has the legal capacity, power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and each other agreement, document or instrument contemplated by
this Agreement and to perform its obligations hereunder. All actions or
proceedings to be taken by or on the part of the Buyer to authorize and permit
the execution and delivery by the Buyer of this Agreement and the instruments
required to be executed and delivered by it pursuant hereto, the performance by
the Buyer of its obligations hereunder and the consummation by the Buyer of the
transactions contemplated hereby, have been duly and properly taken. This
Agreement has been duly executed and delivered by the Buyer and constitutes the
legal, valid and binding obligation of the Buyer, enforceable against the Buyer
in accordance with its terms.
3.3 No Violation or Approval. The execution, delivery and
performance by the Buyer of this Agreement and the consummation by the Buyer of
the transactions contemplated hereby will not result in a breach or violation
of, or a default under, (a) any of the Buyer Charter Documents, (b) any statute
applicable to the Buyer, (c) any agreement to which the Buyer is a party or by
which the Buyer or any of its assets is bound, or (d) any order, judgment,
decree, rule or regulation of any court or any governmental agency or body
having jurisdiction over the Buyer or any of its assets. No consent, approval,
order or authorization of, or filing with, any governmental authority or other
entity is required in connection with the execution and delivery by the Buyer of
this Agreement or the
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consummation by the Buyer of the transactions contemplated hereby, except for
required filings under the HSR Act or any similar foreign filings.
3.4 Litigation. As of the date hereof, there is no action, suit or
proceeding against, or to the knowledge of the Buyer threatened against or
affecting, the Buyer or any Affiliate of the Buyer or any of their properties,
assets or businesses, before any court or arbitrator or any governmental body,
agency or official that in any manner challenges or seeks to prevent, enjoin,
alter or materially delay any of the transactions contemplated hereby.
3.5 Investment Representation. The Buyer is acquiring the ESOP
Shares for investment and not with a view to, or in connection with, any
distribution or sale thereof in violation of the Securities Act.
3.6 Financing. The Buyer has and as of the Closing Date will have
sufficient immediately available funds in cash or binding commitment letters
(the "Commitment Letters"), copies of which have been provided to the Trustee,
to acquire the ESOP Shares and to pay all contemplated fees and expenses
incurred by it and related to the transactions contemplated by this Agreement.
3.7 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried on without the intervention
of any Person acting on behalf of the Buyer in such manner as to give rise to
any valid claim against the Trustee, the Company or the Buyer for any brokerage
or finder's commission, fee or similar compensation.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As an inducement to the Trustee to enter into this Agreement the
Company hereby represents and warrants to the Trustee as and to the extent
provided in Sections 3.1, 3.2, and 3.3 of the Primary Agreement.
5. COVENANTS.
5.1 Certain Agreements. Each of the parties hereto will use its
commercially reasonable best efforts to consummate the transactions contemplated
by this Agreement and the Primary Agreement. Each party will promptly notify the
others of any action, suit or proceeding that may be instituted or threatened
against such party to restrain, prohibit or otherwise challenge the legality of
any transaction contemplated by this Agreement. Each party will promptly notify
the other parties of any lawsuit, claim, proceedings or investigation that may
be threatened, brought, asserted or commenced after the date hereof against the
Company or any Subsidiary that would have been required to be disclosed under
the Primary Agreement, and, in the case of any of the foregoing pending on the
date hereof, of any material development in respect thereto. Each of the parties
hereto will give prompt notice to the other parties of (a) any notice or other
communication received by any such Person from any governmental body or third
Person alleging that the consent of such governmental body or third Person is or
may be required in connection with the transactions contemplated by this
Agreement, (b) the occurrence of any event or circumstance that could have a
Material Adverse Effect, and of which such party has knowledge, (c) the breach
of any representation, warranty, covenant or other material agreement of any
such party contained herein, or (d) any amendments or supplements to, or waivers
or consents under, the Primary Agreement;
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provided, however, that notice of any such amendments, supplements, waivers or
consents be given to the Trustee at least two business days prior to the
adoption, granting or execution thereof.
5.2 Governmental Filings. The Trustee, the Company and the Buyer
will cooperate with each other in filing any necessary applications, reports or
other documents with any federal or state agencies, authorities or bodies
(domestic or foreign) having jurisdiction with respect to this Agreement and the
transactions contemplated hereby, and in seeking necessary consultation with and
prompt favorable action by, including required consents of, any such agencies,
authorities or bodies.
5.3 Amendment of Primary Agreement. The Company and the Buyer
covenant that without the prior written consent of the Trustee, which consent
will not be unreasonably withheld, they will not consent to any amendment of the
Primary Agreement that results in (i) a change in the definition or calculation
of the Purchase Price or the Purchase Price per Share (as those terms are
defined therein) or (ii) any change that disproportionately adversely affects
any stockholder or class of stockholders.
5.4 Investigation of the Company and the Buyer by the Trustee.
Each of the Company and the Buyer will afford to the officers, employees and
authorized representatives of the Trustee (including, without limitation,
independent public accountants, attorneys, environmental consultants and
engineers) reasonable access during normal business hours to their and their
Subsidiaries' respective offices, properties, employees and business and
financial records (including computer files, retrieval programs and similar
documentation) to the extent the Trustee will reasonably deem necessary or
desirable and will furnish to the Trustee or its authorized representatives,
such additional information concerning the Company, the Buyer and their
respective Subsidiaries and each of their properties, assets, businesses and
operations as will be reasonably requested, including all such information as
will be necessary to enable the Trustee or its representatives to verify the
accuracy of the representations and warranties contained in Section 4, to verify
that the covenants of the Company and the Buyer have been complied with, and to
determine whether the conditions set forth in Section 6 have been satisfied. The
Trustee covenants that such investigation will be conducted in such a manner as
not to interfere unreasonably with the operations of the Company and the Buyer.
No investigation by the Trustee or its representatives hereunder will affect the
representations and warranties of the Company and the Buyer.
6. CONDITIONS.
6.1 Conditions Precedent to Obligations of Trustee. The
obligations of the Trustee to consummate the transactions contemplated by this
Agreement will, at its option, be subject to the satisfaction on or prior to the
Closing Date, of the following conditions:
6.1.1 No Misrepresentation or Breach of Covenants and
Warranties. There will have been no material breach of covenants by the
Buyer or the Company in the performance of any of their covenants and
agreements herein; each of the representations and warranties of the
Buyer and the Company contained in this Agreement and of the Buyer
contained in the Primary Agreement will be true and correct as of the
Closing Date as though made as of the Closing Date, except for (i)
representations and warranties that speak as of a specific date or
time, which need only be true and correct as of such date or time, (ii)
representations and warranties that
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are not qualified by Material Adverse Effect or otherwise by material
adversity, which need be true and correct except for such inaccuracies
as in the aggregate (together with the inaccuracies referred to in the
following clause (iii)) would not have a Material Adverse Effect, (iii)
representations and warranties that are qualified by Material Adverse
Effect or otherwise by material adversity will also be true and correct
without regard to such qualification except for such inaccuracies as in
the aggregate (together with the inaccuracies referred to in the
preceding clause (ii)) would not have a Material Adverse Effect, and
(iv) changes therein specifically permitted by this Agreement and the
Primary Agreement. The Buyer will deliver to the Trustee a certificate
to such effect as it relates to the Buyer, dated the Closing Date, and
signed by the President or other senior executive officer of the Buyer
in such person's capacity as an officer of the Buyer and not in his or
her individual capacity. The Company will deliver to the Trustee a
certificate to such effect as it relates to the Company, dated the
Closing Date, and signed by the President or other senior executive
officer of the Company in such person's capacity as an officer of the
Company and not in his or her individual capacity.
6.1.2 Litigation. At the Closing Date, there will be no
injunction, restraining order or decree of any nature of any court or
other governmental body of competent jurisdiction that is in effect
that restrains or prohibits the consummation of the transactions or
other material obligations of the parties hereto as contemplated
hereby, and no proceedings seeking any such relief or seeking material
damages with respect to the transactions contemplated hereby will be
threatened or pending by any governmental body of competent
jurisdiction.
6.1.3 Primary Agreement. The Primary Agreement will not
have been terminated and will be consummated substantially
simultaneously with the consummation of the Sale.
6.2 Conditions Precedent to Obligations of the Buyer. The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement will, at its option, be subject to the satisfaction on or prior to the
Closing Date, of the following conditions:
6.2.1 No Misrepresentations or Breach of Covenants and
Warranties. There will have been no material breach of covenants by the
Trustee or the Company in the performance of any of their covenants and
agreements herein; each of the representations and warranties of the
Trustee and the Company contained in this Agreement will be true and
correct as of the Closing Date as though made as of the Closing Date,
except for (i) representations and warranties that speak as of a
specific date or time, which need only be true and correct as of such
date or time, (ii) representations and warranties that are not
qualified by materiality or Material Adverse Effect and which need be
true and correct in all material respects only, and (iii) changes
therein specifically permitted by this Agreement and the Primary
Agreement. The Trustee will deliver to the Buyer a certificate to such
effect as it relates to the Trustee, dated the Closing Date, and signed
by the President or other senior executive officer of the Trustee, in
such person's capacity as an officer of the Trustee and not in his or
her individual capacity. The Company will deliver to the Buyer a
certificate to such effect as it relates to the Company, dated the
Closing Date, and signed by the President or other senior executive
officer of the Company in such
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person's capacity as an officer of the Company and not in his or her
individual capacity.
6.2.2 Litigation. At the Closing Date, there will be no
injunction, restraining order or decree of any nature of any court or
other governmental body of competent jurisdiction that is in effect
that restrains or prohibits the consummation of the transactions or
other material obligations of the parties hereto as contemplated
hereby, and no proceedings seeking any such relief or seeking material
damages with respect to the transactions contemplated hereby will be
threatened or pending by any governmental body of competent
jurisdiction.
6.2.3 Primary Agreement. The Primary Agreement will not
have been terminated and will be consummated substantially
simultaneously with the consummation of the Sale.
7. TERMINATION.
7.1 Non-Survival of Representations Warranties and Agreements. All
representations and warranties in this Agreement will terminate at the earlier
of (i) the consummation of the transactions contemplated hereby and (ii) the
termination of this Agreement in accordance with Section 7.2 below. All
covenants and agreements set forth in this Agreement will survive in accordance
with their terms.
7.2 Termination. Anything contained in this Agreement to the
contrary notwithstanding, this Agreement (i) may be terminated at any time prior
to the Closing Date by the mutual consent of the parties hereto and (ii) will
terminate automatically upon the earlier termination of the Primary Agreement in
accordance with Section 8.1 thereof; provided, however, that if pursuant to the
terms thereof, the Primary Agreement is amended to extend the Expiration Date
thereunder beyond January 31, 2004, this Agreement may only be extended for the
same period with the prior consent of the Trustee, which consent will not be
unreasonably withheld. In the event that this Agreement is terminated pursuant
to this Section 7.2, all obligations of the parties under this Agreement (other
than under this Section 7.2 and Section 7.1 above) will be terminated without
liability or penalty on the part of any party or its officers or directors to
any other party, other than may result from any willful and material breach by a
party of this Agreement. In the event that the Primary Agreement is terminated,
all obligations of the parties hereunder will cease and all actions taken by the
parties under this Agreement (including amendments, waivers, exchanges or sales)
will be deemed void ab initio and each party to this Agreement will be restored
to its legal, contractual and ownership position immediately prior to entering
into this Agreement.
8. GENERAL.
8.1 Notices. All notices, requests, demands, claims and other
communications required or permitted hereunder will be in writing and will be
sent by nationally recognized overnight courier, registered mail or certified
mail, or by electronic mail with confirmation of receipt. Any notice, request,
demand, claim, or other communication required or permitted hereunder will be
deemed duly given, as applicable, (a) one business day following the date sent
when sent by overnight delivery or the date receipt is confirmed when sent by
electronic mail, or (b) five business days following the date mailed when mailed
by registered or certified mail return receipt requested and postage prepaid to
the following address:
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(a) If to the Buyer:
THL Bedding Company
c/o Xxxxxx X. Xxx Partners, L.P.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000-000-0000
Attention: Xxxxx X. Xxxxxx
(xxxxxxx@xxxxx.xxx)
and
Xxxx Xxxxxxxx
(xxxxxxxxx@xxxxx.xxx)
-- with a copy to --
Weil, Gotshal & Xxxxxx LLC
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esquire
(xxxxx.xxxxxx@xxxx.xxx)
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxxx, Esquire
(xxxxxxx.xxxxxx@xxxx.xxx)
Tel: (000) 000-0000
(b) if to the Company:
c/o Fenway Partners, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx
(xxxxxxxxx@xxxxxxxxxxxxxx.xxx)
-- with a copy to --
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00 000-0000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(xxxxxxx@xxxxxxxxx.xxx)
-- and a copy to --
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Xxxxxxx Company
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. XxXxxxxx, Esq.
(xxxxxxxxx@xxxxxxx.xxx)
(c) if to the Trustee:
State Street Bank & Trust Company
Batterymarch Park III
Three Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopy:(000) 000-0000
-- with a copy to --
Xxxxxxxxxxx & Xxxxxxxx LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
(xxxxxx@xx.xxx)
8.2 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or under
public policy, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or legal
substances of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
8.3 Counterparts. This Agreement may be executed in any number of
counterparts, and by the different parties hereto to separate counterparts, each
of which will be deemed an original for all purposes and all of which together
will constitute one and the same instrument.
8.4 Governing Law. This Agreement will be governed by and
construed in accordance with ERISA and the laws of the State of New York without
regard to principles of conflicts of laws.
8.5 Assignment: Successors and Assigns. Neither this Agreement nor
any of the rights, interests or obligations hereunder may be assigned by any of
the parties hereto without the prior written consent of the other parties.
Subject to the foregoing, this Agreement will be
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binding upon and inure to the benefit of the parties hereto and their respective
successors or assigns, heirs, legatees, distributees, executors, administrators
and guardians. Nothing in this Agreement, expressed or implied, is intended or
will be construed upon any Person any right, remedy or claim under or by reason
of this Agreement.
8.6 Titles and Headings. Titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. All references
to "Sections" in this Agreement refer to Sections of this Agreement unless the
context otherwise clearly indicates.
8.7 Knowledge. In each provision of this Agreement in which a
representation or warranty is qualified to the "knowledge" of a Person or to the
"best of the knowledge" of a person, unless otherwise stated in such provision,
each such phrase means that the Person does not have actual knowledge after due
investigation thereof of any state of facts that is different from the facts
described in the warranty or representation.
8.8 Entire Agreement: Amendments. This Agreement contains the
entire understanding of the parties hereto with regard to the subject matter
contained herein. The parties hereto, by mutual agreement in writing, may amend,
modify and supplement this Agreement. Any such agreement will be validly and
sufficiently authorized for purposes of this Agreement if it is signed by the
Trustee, the Buyer and the Company.
8.9 Waivers. Any term or provision of this Agreement may be
waived, or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. The failure of any party hereto to enforce at
any time any provision of this Agreement will not be construed to be a waiver of
such provision, nor in any way to affect the validity of this Agreement or any
part hereof or the right of any party thereafter to enforce each and every such
provision. No Waiver of any breach of this Agreement will be held to constitute
a waiver of any other or subsequent breach.
8.10 Specific Performance. The parties acknowledge that irreparable
damage would result if this Agreement were not specifically enforced, and they
therefore consent that the rights and obligations of the parties under this
Agreement may be enforced by a decree of specific performance issues by a court
of competent jurisdiction. Such a remedy will, however, not be exclusive, and
will be in addition to any other remedies that any party may have under this
Agreement or otherwise.
[The remainder of this page is intentionally left blank. Signatures follow.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first written above.
THE COMPANY: XXXXXXX HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President and CFO
THE TRUSTEE STATE STREET BANK AND TRUST COMPANY,
as trustee of the Xxxxxxx Company Employee
Stock Ownership Trust
By: /s/ Xxxxxx X. Marzeoth
-----------------------------
Name: Xxxxxx X. Marzeoth
Title: Vice President
THE BUYER THL BEDDING COMPANY
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
9274623_iSignature Page to ESOP Stock Sale Agreement
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