Exhibit 10.11
CONSULTANT'S AGREEMENT
This Agreement effective July 12, 2003 is made between and among
Tempur-Pedic, Inc., and Tempur World, Inc. (collectively referred to as "the
Company"), and Xxxx Xxxxx, ("Consultant").
WHEREAS, Consultant has acquired extensive knowledge of and experience in
the business as conducted by the Company;
WHEREAS, the Company desires to obtain the benefit of Consultant's
knowledge and experience by retaining Consultant, and Consultant desires to
accept such position, for the term and upon the other conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties agree as follows:
Term: This Agreement shall commence on July 12, 2003 and shall terminate on
July 12, 2004 (the "Consulting Term") unless earlier terminated for any reason
by either party hereto upon Thirty (30) days prior written notice.
Consultations: During the Consulting Term Consultant shall make himself
available at reasonable times to provide business consulting services to the
officers, directors and other representatives of the Company as reasonably
requested by the Chief Executive Officer of the Company (hereafter, the
"Executive"), or his designees and the Company will provide Consultant with
reasonable access to the facilities and senior management. Consultant shall not
represent the Company, its Board of Directors, its officers or any other members
of the Company in any transactions or communications, nor shall Consultant make
claim to do so unless authorized by the Executive or his designees.
Consultant agrees to consult with the Executive or his designees in the
event a situation arises in which his opinion, if expressed, or his actions, if
taken, could possibly affect the interests or reputation of the Company. While
Consultant is free at all times to express his opinions he agrees that any such
opinion(s) expressed or actions taken are his and not those of the Company and,
if not specifically authorized by the Company in writing, may, at the option of
the Company, result in termination of this Agreement.
It is understood that this Agreement will require Consultant to provide
consultation regarding strategic planning initiatives and other aspects of the
Company's business which may require the Company to disclose to Consultant
secret, proprietary and confidential information concerning the Company and its
business affairs. Consultant also acknowledges that, during the course of his
employment with the Company prior to the date hereof, he has been entrusted with
certain personnel, business, financial, technical and other information and
material which are the property of the Company and which involve confidential
information of the Company and the Company's employees. Consultant agrees to
maintain the confidentiality of all Company trade secrets, proprietary and
confidential information.
Consultant agrees that all inventions, developments or improvements made by
the Consultant, either alone or in conjunction with others, at any time or any
place during the term of the Consultant's assignment with the Company, whether
or not reduced to writing or practice during the term, which relate to the
business in which the Company or any subsidiary or affiliate is engaged or in
which the Company or any subsidiary or affiliate intends to engage, shall be the
exclusive property of the Company. The Consultant shall promptly disclose any
such invention, development or improvement to the Company, and, at the request
and expense of the Company, shall assign all of the Consultant's
rights to the same to the Company. Upon termination of the assignment,
Consultant shall deliver to the Company, all drawings, manuals, letters, notes,
notebooks, reports, computer files and all other materials (including all copies
of such materials), relating to such confidential information or the business of
the Company which are in the possession or under the control of Consultant.
Compensation: For the performance of the services to rendered to the
Company pursuant to the terms of this Agreement, the Company shall pay the
Consultant Six Thousand Dollars ($6,000) per month on a monthly basis. The
Consultant shall submit an itemized statement of services performed during any
particular month by the fifth (5th) day of the next succeeding month. The amount
shall be paid to the Consultant within fifteen (15) business days of the
Company's receipt of such statement.
Expenses: In the event that Consultant is required, in connection with the
performance of services hereunder, to incur business expenses, e.g. travel and
lodging, the Company shall reimburse Consultant for all reasonable and necessary
expenses that have been approved in advance by the Executive or his designees.
In connection with such expenses, Consultant shall submit to the Company
documentation substantiating same, e.g., receipts, and shall be reimbursed
within fifteen (15) business days of the Company's receipt of an invoice
together with such substantiating documentation.
Time Devoted To Work: In the performance of the services, the time
Consultant is to work on any given day will be entirely within Consultant's
control and the Company will rely upon Consultant to put in such amount of time
as is reasonably necessary to fulfill the spirit and purpose of this agreement.
Status: The Consultant is engaged as an independent contractor and shall be
treated as such for all purposes, including but not limited to Federal and State
taxation, withholding, unemployment insurance, and workers' compensation. It is
understood that the Company will not withhold any amounts for payment of taxes
from the compensation of Consultant and that Consultant will be solely
responsible to pay all applicable taxes from said payments, including payments
owed to any employees and subagents of Consultant. Consultant will not be
considered an employee of the Company for any purpose.
Representations and Warranties: The Consultant will make no
representations, warranties, or commitments binding the Company without the
Executive's prior written consent.
Employment of Others. The Company may from time to time request that the
Consultant arrange for the services of others. All costs to the Consultant for
those services will be paid by the Company but in no event shall the Consultant
employ others without the prior authorization of the Company.
No Adequate Remedy: The Consultant understands that if the Consultant fails
to fulfill the Consultant's obligations under this Agreement, the damages to the
Company would be very difficult to determine. Therefore, in addition to any
other rights or remedies available to the Company at law, in equity, or by
statute, the Consultant hereby consents to the specific enforcement of this
Agreement by the Company through an injunction or restraining order issued by an
appropriate court.
Modification: This Agreement may be modified or amended only in writing and
signed by both the Executive and Consultant.
Governing Laws: The laws of Kentucky will govern the validity, construction
and performance of this Agreement. Any legal proceeding related to this
Agreement must be litigated in an appropriate Kentucky state or federal court,
and both the Company and the Consultant hereby consent to the exclusive
jurisdiction of such court for this purpose.
Construction: Wherever possible, each provision of this Agreement will be
interpreted so that it is valid under the applicable law. In the event any
portion of this Agreement is declared invalid, the remainder of this Agreement
also will continue to be valid.
Waivers: No failure or delay by either the Company or Consultant in
exercising any right or remedy under this Agreement will waive any provision of
the Agreement. Nor will any single or partial exercise by either the Company or
Consultant of any right or remedy under this Agreement preclude either of them
from otherwise or further exercising these rights or remedies, or any other
rights or remedies granted by any law or any related document.
Notices: All notices and other communications required or permitted under
this Agreement shall be in writing and sent by registered first-class mail,
postage prepaid, addressed to the party's last know business address and shall
be effective five days after mailing to the address stated at the beginning of
this Agreement. These addresses may be changed at any time by like notice.
This Consulting Agreement is supplemental to the Separation Agreement
between Consultant and the Company dated July 3, 2003 which Separation Agreement
shall continue in full force and effect.
The parties to this Agreement have read this Agreement and understand it.
/s/ Xxxxxxx X. Xxxxx
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Consultant
Date: 7/14/2003
TEMPUR-PEDIC, INC.
/s/ H. Xxxxxx Xxxxxx
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Title: CEO Date 7-14-2003
TEMPUR WORLD, INC.
/s/ H. Xxxxxx Xxxxxx
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Title: EVP Date 7-14-2003
