FIRST AMENDMENT TO AMENDED AND RESTATED RESTRICTED STOCK AGREEMENT
EXHIBIT
10.13-2
FIRST
AMENDMENT TO
AMENDED
AND RESTATED RESTRICTED STOCK AGREEMENT
This
First Amendment to Amended and Restated Restricted Stock Agreement (“Amendment”)
is made as of this 10th day of January, 2007 between Xxxxxxx Company, a Delaware
corporation (the “Company”), and the undersigned (the “Restricted
Shareholder”).
WHEREAS,
the Company and the Restricted Shareholder entered into that certain Amended and
Restated Restricted Stock Agreement dated as of April 17, 2006 (the
“Agreement”); and
WHEREAS,
the Company and the Restricted Shareholder desire to amend the Agreement on the
terms set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the undersigned hereby agree as
follows:
1. Definitions. Capitalized
terms used herein but not defined shall have the meanings ascribed thereto in
the Agreement.
2. Amendments.
(a) Section
2(a)(i) of the Agreement is hereby amended by deleting the schedule titled
“EBITDA Targets” in its entirety and replacing it with the
following:
“EBITDA
Targets
(dollars
in millions)
|
Measurement
Years
|
Target
EBITDA
|
Cumulative
Target EBITDA
|
90%
of Target
EBITDA
|
90%
of Cumulative Target
EBITDA
|
Eligible
Shares
|
|
2006
|
$146.2
|
$146.2
|
$131.6
|
$131.6
|
21.25%
of Restricted Shareholder Stock
|
|
2007
|
$190.0
|
$336.2
|
$171.0
|
$302.6
|
30%
of Restricted Shareholder Stock
|
|
2008
|
$225.0
|
$561.2
|
$202.5
|
$505.1
|
30%
of Restricted Shareholder Stock
|
(b) Section
2(a)(ii)(B) of the Agreement is hereby amended by deleting the schedule included
therein in its entirety and replacing it with the following:
|
“Month
|
2006
Monthly
Target
EBITDA
(dollars
in millions)
|
2006
Year to Date
Target
EBITDA
(dollars
in millions)
|
|
January
|
$11.6
|
$11.6
|
|
February
|
$10.7
|
$22.3
|
|
March
|
$10.3
|
$32.6
|
|
April
|
$13.3
|
$45.9
|
|
May
|
$11.1
|
$57.0
|
|
June
|
$11.1
|
$68.1
|
|
July
|
$15.6
|
$83.7
|
|
August
|
$14.0
|
$97.7
|
|
September
|
$13.8
|
$111.5
|
|
October
|
$14.6
|
$126.1
|
|
November
|
$10.5
|
$136.6
|
|
December
|
$9.6
|
$146.2
|
(c) Section
5(a) of the Agreement is hereby deleted in its entirety and replaced with the
following:
“(a) The
Company and the Restricted Shareholder acknowledge and agree that the Shares of
Restricted Shareholder Stock are subject to and restricted by the
Securityholders’ Agreement and with respect to such Shares of Restricted
Shareholder Stock, the Restricted Shareholder 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 Restricted Shareholder
Stock may be transferred to any Person who is not an Affiliate of the Restricted
Shareholder; provided that, with respect to Shares that are not Vested Shares,
all terms relating to vesting and repurchase of the Shares shall continue to
apply and shall be deemed to be with reference to the employment or service of
the original Restricted Shareholder transferring the Shares. The
Vested Shares may be transferred by will or the laws of descent and
distribution.”
(d) Section
7 of the Agreement is hereby amended by deleting the definitions of “Credit
Agreement”, “Financing Default”, “Indentures”, and “Senior Manager” and
replacing them with the following:
““Credit Agreement”
shall mean the Amended and Restated Credit and Guaranty Agreement, dated as of
August 27, 2004, among Xxxxxxx Bedding Company, as Company, THL-SC Bedding
Company and certain subsidiaries of the Company, as Guarantors, the financial
institutions listed therein, as Lenders, UBS Securities LLC, as Joint Lead
Arranger and as Co-Syndication Agent, Deutsche Bank AG, New York Branch, as
Administrative Agent and Collateral Agent, General Electric Capital Corporation,
as Co-Documentation Agent, CIT Lending Services Corporation, as Co-Documentation
Agent, and Xxxxxxx Xxxxx Credit Partners L.P., as Sole Bookrunner, a Joint Lead
Arranger and as Co-Syndication Agent, as amended and/or restated from time to
time.
“Financing Default”
means any event of default or breach under (i) the Credit Agreement,
(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 any of the Indentures 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.
“Indentures” shall
mean (i) that certain Indenture, dated as of December 19, 2003, governing the
Senior Subordinated Notes of Xxxxxxx Bedding Company, a Subsidiary of the
Company, due 2013, as amended, modified, restated or refinanced from time to
time, and (ii) that certain Indenture, dated as of December 15, 2004, governing
the Company’s 10% Senior Discount Notes, due 2014, as amended, modified,
restated or refinanced from time to time.
“Senior Manager” shall
mean each of Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxxx, and Xxxx X. Xxxxxxxx,
and/or any other Persons designated by the Board as Senior Managers
(collectively, the “Senior
Managers”).”
3. Miscellaneous.
(a) Except as
expressly modified pursuant to this Amendment, the Agreement remains unchanged
and in full force and effect. This Amendment shall be governed by all
of the provisions in Section 8 of the Agreement.
(b) This
Amendment may be executed in one or more counterparts, each of which shall be
deemed to be an original, and all of which shall constitute one and the same
agreement.
* * * * * *
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Amended and Restated Restricted Stock Agreement as of the date first written
above.
XXXXXXX
COMPANY
By: /s/ Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
Senior Vice President and
General
Counsel
RESTRICTED
SHAREHOLDER
By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx
X. Xxxxxxxxx
