Exhibit 10.11.19
EXECUTION COPY
AMENDMENT TO
EMPLOYMENT AGREEMENT
This Amendment No 1 (the "Amendment") to the Employment Agreement is made
and entered into on the 25th day of April, 2005 between Foamex International
Inc., a Delaware corporation and its primary operating subsidiary Foamex L.P.
(collectively the "Company"), and Xxxxxxx X. Xxxxxxxxx ("Executive").
WHEREAS, the Company and Executive executed an employment agreement, dated
January 26, 2004 (the "Agreement"), governing the terms of Executive's
employment with the Company; and
WHEREAS, the Compensation Committee of the Board of Directors has reviewed
the Executive's performance and desires to create certain incentives to retain
the services of the Executive; and
WHEREAS, the Company desires to amend certain provisions in the Agreement
and as set forth herein; and
WHEREAS, terms and conditions of the Agreement not specifically amended
herein shall remain unchanged and in full force and effect.
NOW, THEREFORE, the parties hereby agree that the following provisions will
be amended as follows:
ARTICLE III - Compensation and Expenses
Section 3.1 (a) shall now read in its entirety as follows:
Salary. Effective May 1, 2005, the Company shall pay Executive a base
salary during the Term ("Base Salary"), payable in accordance with the normal
payment procedures of the Company and subject to such withholdings and other
normal employee deductions as may be required by law, at the rate of at least
$300,000 per annum. The Base Salary will be reviewed annually by the
Compensation Committee of the Board.
Section 3.1 (c) (i) shall now read in its entirety as follows:
Bonus. (i) During the Term, Executive shall be eligible to earn a fiscal
year target bonus award of 50% of Base Salary ("Annual Bonus"), which shall be
based upon the attainment of Company performance targets for the applicable
fiscal year, as measured against a written set of reasonable performance
criteria communicated to Executive for such fiscal year. The Annual Bonus shall
be awarded pursuant the Foamex Salaried Incentive Plan (the "SIP"), and, except
as otherwise provided for herein, shall be subject to the terms and conditions
of the SIP. For 2005, the Executive shall be eligible for a special retention
bonus (the "Retention Bonus") of up to $125,000, twenty five percent of which
shall be payable on or about August 31, 2005 and the balance of which shall be
payable in January 2006, provided the Executive's employment is not terminated
by the Company for Cause prior to the payment dates or the Executive does not
elect to
terminate his employment for other than Good Reason prior to the payment dates.
The Retention Bonus shall be reduced by $0.50 for each dollar of Annual Bonus
earned and paid pursuant to the SIP. Notwithstanding the forgoing, Executive
shall be entitled to receive such other incentive compensation as the
Compensation Committee of the Board may, in its sole discretion, award.
Change in Control Protection
Article 5 - Effect of Termination.
Section 5.5 (b) and (c) shall now read in their entirety as follows:
(b) In the event of a termination of Executive's employment by Executive
for Good Reason or by the Company for reasons other than for Cause, death or
Disability. Executive shall receive an amount, payable in twenty four (24) equal
monthly installments in accordance with the Company's regular payroll policies,
equal to the sum of the following: two multiplied by the amount of (i)
Executive's current Base Salary on the date his employment is terminated, and
(ii) Executive's Annual Bonus, calculated as though the Company and Executive
had attained 100% of the performance target for the applicable year in which
Executive's employment terminates. Notwithstanding the foregoing, in the event
Executive's employment is terminated by Executive for Good Reason on account of
a Change in Control or by the Company for reasons other than for Cause, death or
Disability within the twenty four (24) month period commencing on the date of a
Change in Control, Executive's Change in Control Protection Agreement with the
Company attached hereto as Exhibit A shall govern.
(c) In the event of a termination of Executive's employment by Executive
for Good Reason or by the Company for reasons other than Cause or Disability,
Executive shall be entitled medical coverage under the Company's medical plan in
accordance with Section 3.1(b) during the twenty four (24) month period
commencing on the date Executive's employment is terminated (the "Severance
Term"). Upon the expiration of the Severance Term Executive shall be eligible to
elect medical continuation coverage under the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA").
Section 4 (a) of the Executive's Change in Control Protection Agreement (Exhibit
A to the Agreement) will now read in its entirety as follows:
(a) Termination following a Change in Control.
If Executive's employment is terminated during the twenty four (24) month period
following the Operative Date by the Company without Cause (other than as a
result of the death or Disability of Executive) or by Executive with Good Reason
(any such termination, a "Qualifying Termination"), the Company shall, (i) pay
to Executive his accrued but unpaid base salary through the date of the
Qualifying Termination; (ii) pay to
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Executive an amount, payable at the Executives election either as a lump sum
payment or in twenty four equal monthly installments in accordance with the
Company's regular payroll policies, equal to two times the sum of (A) the
greater of (x) Executive's annual base salary in effect immediately prior to the
Operative Date, and (y) Executive's annual base salary as of the date of such
Qualifying Termination, and (B) Executive's annual bonus, calculated as though
the Company and Executive had attained 100% of the performance targets for the
applicable fiscal year of the Company during which the Qualifying Termination
occurs; and (iii) continue for twenty four (24) months Executive's participation
in the health, medical and life insurance benefits and/or coverage provided to
Executive either (1) immediately prior to the Operative Date, or (2) as of the
date of such Qualifying Termination, whichever is more favorable to Executive;
provided, however, that (a) such benefit continuation is subject to the terms
and conditions of such plans, (b) group life insurance continuation is subject
to a limit of three years following such Qualifying Termination, and (c)
Executive shall cease to be covered by medical and/or dental plans of the
Company at such time Executive becomes covered by like plans of another company.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement effective as of the date first above written.
FOAMEX INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and CEO
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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