1
EXHIBIT 10.16
EXECUTION COPY
EMPLOYMENT AND MANAGEMENT SECURITIES AGREEMENT
This EMPLOYMENT AND MANAGEMENT SECURITIES AGREEMENT is dated as of
June 30, 2000, by and among Crescent Sleep Products Company, a Delaware
corporation (the "Company"), Sleepmaster Holdings L.L.C., a New Jersey limited
liability company ("Holdings"), Sleepmaster L.L.C., a New Jersey limited
liability company ("Sleepmaster"), Xxxxxx Xxxxxxxxxx (the "Executive") and Sleep
Investor L.L.C., a Delaware limited liability company (the "Investor").
WHEREAS the parties desire to enter into an agreement regarding
the Class C Common and Preferred Units to be issued upon exercise of options
granted pursuant to the Preferred Option Agreement and the Common Option
Agreement upon terms and conditions set forth herein;
WHEREAS, as an inducement to the Company Group to enter into this
Agreement, the Executive has agreed to the provisions of this Agreement
including, without limitation, Sections 3, 4 and 5;
WHEREAS, certain provisions of this Agreement are intended for the
benefit of, and will be enforceable by, the Investor;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Board" means the Company's board of directors.
"Business Day" means any day other than a Saturday or Sunday or a
day on which commercial banks are required or authorized to close in New York,
New York.
"Cause" means (i) a material breach of the Executive's covenants
under this Agreement or any other agreements with the Company or its
Subsidiaries and such breach shall not have been cured within 15 days after
written notice to the Executive; provided, that a breach of any of the
Executive's covenants contained in Sections 3, 4 or 5 of this Agreement shall be
deemed material, (ii) the commission by the Executive of a felony, a crime
involving moral turpitude or other act causing material harm to the standing and
reputation of the Company or any of its Subsidiaries, or (iii) the Executive's
repeated wilful failure to comply with the reasonable and lawful written
directives of the Board.
2
"Class A Common" means the Class A Common Units, as such term is
defined in the Operating Agreement.
"Class B Common" means the Class B Common Units, as such term is
defined in the Operating Agreement.
"Class C Common" means the Class C Common Units, as such term is
defined in the Operating Agreement.
"Common Interests" means the Class A Common, the Class B Common
and the Class C Common.
"Common Option Agreement" means the Common Unit Replacement ISO
Option Agreement, dated as of the date hereof, by and between Holdings and the
Executive.
"Company Group" means the Company, Holdings, Sleepmaster and their
respective Subsidiaries.
"Disability" means the inability, due to illness, accident,
injury, physical or mental incapacity or other disability, of the Executive to
carry out effectively his duties and obligations to the Company or to
participate effectively and actively in the management of the Company or a
Subsidiary of the Company for a period of at least 90 consecutive days or for
shorter periods aggregating at least 120 days (whether or not consecutive)
during any twelve-month period, as determined in the reasonable judgment of the
Board.
"EBITDA" for any period, means the net income of the Company
giving effect to the payment of all bonuses, determined in accordance with GAAP
on a basis consistent with the 1999 audited consolidated financial statements of
the Company as audited by Xxxxxx Xxxxxxxx LLP excluding (i) any effect of any
acquisitions by the Company, Sleepmaster or any of their Affiliates, (ii) any
noncash reversals of accruals, (iii) any gain realized upon the disposition of
any property, plant and equipment not in the ordinary course of business, (iv)
any extraordinary or nonrecurring gain, and (v) any interest or similar income
plus to the extent reflected as an expense in the determination of net income,
(A) interest or similar expense, (B) federal, provincial or municipal/state or
local income taxes, (C) depreciation and amortization of tangible and intangible
property of the Company except for any depreciation or amortization recorded
related to the impairment of assets acquired by Sleepmaster pursuant to the
Merger Agreement, (D) any extraordinary or non-recurring losses, (E) any loss
realized upon the disposition of any property, plant and equipment not in the
ordinary course of business and (F) any intercompany charges.
"Executive Securities" means the Class C Common and the Preferred
Units to be issued to the Executive upon exercise of the options granted
pursuant to the Common Option Agreement and the Preferred Option Agreement and
will include units of Holdings' Common Interests issued with respect to
Executive Securities by way of a split, dividend, combination, exchange,
conversion, or other recapitalization, merger, consolidation or reorganization.
Executive Securities will cease to be Executive Securities when transferred
pursuant to a Qualified Public Offering or Sale of Holdings. Executive
Securities will continue to be Executive Securities in the
-2-
3
hands of any holder other than the Executive, including all transferees of the
Executive (except for Holdings and the Investor (or its designee)), and except
as otherwise provided herein, each such other holder of Executive Securities
will succeed to all rights and obligations attributable to the Executive as a
holder of Executive Securities hereunder.
"Fair Value" of each Preferred Unit shall be the Original Cost of
such Preferred Unit, and the Fair Value of each unit of Class C Common means the
average of the closing prices of the sales of Holdings' membership interests on
all securities exchanges on which the membership interests may at the time be
listed, or, if there have been no sales on any such exchange on any day, the
average of the highest bid and lowest asked prices on all such exchanges at the
end of such day, or, if on any day the membership interests are not so listed,
the average of the representative bid and asked prices quoted on the Nasdaq
National Market System ("Nasdaq NMS") as of 4:00 P.M., New York time, or, if on
any day the membership interests are not quoted in the Nasdaq NMS, the average
of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau
Incorporated, or any similar successor organization, in each such case averaged
over a period of 21 days consisting of the day as of which the Fair Value is
being determined and the 20 consecutive business days prior to such day. If at
any time the Class C Common is not listed on any securities exchange or quoted
in the Nasdaq NMS or the over-the-counter market, the Fair Value of each unit of
Class C Common shall be the fair market value of such unit as determined by
Holdings' board of advisors in its good faith judgment.
"GAAP" means U.S. generally accepted accounting principles, as in
effect from time to time and as adopted by the Company with the consent of its
independent public accountants, consistently applied.
"Good Reason Event" means (i) a material breach of this Agreement
by the Company, (ii) the relocation of the Executive's office more than 25 miles
from Greensboro, North Carolina, or (iii) a substantial reduction by the Company
of the Executive's job responsibilities which is not connected to the
Executive's illness or disability (prior to a determination that the Executive
has a Disability).
"Merger Agreement" means the Agreement and Plan of Merger dated as
of June 29, 2000, by and among the Company, Sleepmaster and certain other
parties.
"Operating Agreement" means the Third Amended and Restated Limited
Liability Company Operating Agreement of Sleepmaster Holdings L.L.C., dated as
of the date hereof, by and among Sleepmaster Holdings L.L.C. and certain other
parties.
"Original Cost" of the Executive Securities acquired pursuant to
the Common Option Agreement or the Preferred Option Agreement, as the case may
be, will be equal to $223.153 per unit of Class C Common and $1,400.016 per
Preferred Unit plus all accrued and unpaid dividends thereon.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
-3-
4
"Preferred Units" means the Preferred Units, as such term is
defined in the Operating Agreement.
"Preferred Option Agreement" means the Preferred Unit Replacement
ISO Option Agreement, dated as of the date hereof, and between Holdings and the
Executive.
"Previous Agreement" means the Employment Agreement, dated as of
March 17, 1998, by and between the Executive and the Company.
"Public Offering" means any sale of securities of Holdings in an
underwritten public offering.
"Qualified Public Offering" means any sale, in an underwritten
public offering registered under the Securities Act, of equity securities of
Holdings having an aggregate value of at least $35 million.
"Sale of Holdings" means the sale of Holdings, in a single
transaction or a series of related transactions, to a third party (which is not
an Affiliate of the Investor) pursuant to which such third party proposes to
acquire all or substantially all of the outstanding Common Interests (whether by
merger, consolidation, recapitalization, reorganization, purchase of the
outstanding Common Interests or otherwise) or all or substantially all of the
consolidated assets of the Holdings.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securityholders Agreement" means the Amended and Restated
Securityholders Agreement dated as of March 3, 1998 by and among the Company,
the Investor and certain other parties thereto.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation or a limited liability company, a majority of the
total voting power of securities entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, limited liability company, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated a majority of
partnership, limited liability company, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such partnership, limited liability company, association or other business
entity.
"Termination Year" means that fiscal year of the Company during
which the Employment Period ends pursuant to the terms of Section 2(d) hereof.
-4-
5
2. Employment.
(a) Employment. The Company agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement for the period beginning on the date
hereof and ending as provided in Section 2(d) (the "Employment Period").
(b) Position and Duties.
(i) Commencing on the date hereof and continuing during
the Employment Period, the Executive shall serve as Vice President of
Manufacturing of the Company under the supervision and direction of the
President or the Board.
(ii) The Executive shall devote his best efforts and his
full business time and attention (except for permitted vacation periods and
reasonable periods of illness other than Disability) to the business and affairs
of the Company. The Executive shall perform his duties and responsibilities to
the best of his abilities in a diligent, trustworthy, businesslike and efficient
manner. Subject to the provisions of Sections 3, 4 and 5 of this Agreement,
nothing in this Section 2(b) will prevent the Executive from participating in
reasonable charitable activities and personal investment activities so long as
such activities shall not interfere with his performance of his obligations
under this Agreement.
(c) Base Salary and Benefits.
(i) Base Salary. During the Employment Period, the
Executive's base salary shall be $150,000.00 per annum (the "Base Salary"),
which salary shall be paid by the Company in regular installments in accordance
with the Company's general payroll practices and shall be subject to customary
withholding. The Executive's Base Salary will be subject to review on or about
January 1 of each fiscal year during the Employment Period beginning January 1,
2002.
(ii) Executive Bonus Plan. For each fiscal year during
the Employment Period, the Executive will be eligible to receive a bonus based
on the Company's achievement of the Target EBITDA for such fiscal year. Target
EBITDA for the Company shall be $10,400,000 for the period of July 1st through
the end of fiscal year 2000 and for each subsequent fiscal year shall be
determined by the Board no later than March 31st of such fiscal year.
(A) Once the Board has determined (which
determination shall be made within thirty (30) days from the issuance of the
Company's audited financial statements) the percentage of EBITDA achieved for
such fiscal year as compared to the Target EBITDA for such fiscal year (the
"Achieved EBITDA Percentage"), so long as the Achieved EBITDA Percentage for
such fiscal year equals or exceeds 80%, the Executive shall be entitled to
receive a bonus payment in an amount equal to the product of (x) the Bonus
Multiple (as set forth opposite the Achieved EBITDA Percentage below), (y) 40%
and (z) the Executive's Base Salary for such fiscal year (or, with respect to
fiscal year 2000, the prorated portion of such Base Salary equal to the prorated
portion of such fiscal year beginning July 1, 2000). The bonus payment shall be
made within five
-5-
6
(5) days of the Board's determination. The bonus payment shall be subject to
customary withholding.
-----------------------------------------------------------------------
Achieved EBITDA Percentage Bonus Multiple
-----------------------------------------------------------------------
80% 50%
-----------------------------------------------------------------------
100% 100%
-----------------------------------------------------------------------
110% 110%
-----------------------------------------------------------------------
120% 120%
-----------------------------------------------------------------------
130% 130%
-----------------------------------------------------------------------
(B) Each Bonus Multiple set forth above shall
increase linearly as the Achieved EBITDA Percentage increases; therefore, so
long as the Achieved EBITDA Percentage equals or exceeds 80%, in the event the
actual Achieved EBITDA Percentage falls between any of the target Achieved
EBITDA Percentages set forth above, the applicable Bonus Multiple shall be
adjusted accordingly; provided, that in no event shall the Bonus Multiple exceed
130%. For example, (1) in the event the actual Achieved EBITDA Percentage is
90%, the Bonus Multiple shall be 75% or (2) in the event the actual Achieved
EBITDA Percentage is 115%, the Bonus Multiple shall be 115%.
(iii) Benefits. In addition to the Base Salary and any
bonuses payable to the Executive pursuant to Section 2(c)(ii), the Executive
shall be entitled, during the Employment Period, to all benefits set forth on
Schedule A hereto (the "Benefits").
(iv) Expenses. The Company shall reimburse the Executive
for all reasonable expenses incurred by him in the course of performing his
duties under this Agreement which are consistent with the Company Group's
policies in effect from time to time with respect to travel, entertainment and
other business expenses, subject to the requirements of the Company Group with
respect to reporting and documentation of such expenses.
(d) Term. The Employment Period shall end on June 30, 2003,
subject to earlier termination (x) by reason of the Executive's death or
Disability, (y) by resolution of the Board, with or without Cause or (z) upon
the Executive's voluntary resignation with or without a Good Reason Event.
(i) If the Employment Period is terminated on or before
June 30, 2003:
(A) by resolution of the Board other than for
Cause or as a result of the Executive's voluntary resignation within 15 days of
a Good Reason Event, the Executive shall be entitled to receive (1) all
previously earned and accrued but unpaid Base Salary up to the date of such
termination, (2) a portion of the bonus payment earned by the Executive during
the Termination Year pro rated based on the number of days of the Termination
Year prior to the date of termination, which such payment will be made when the
bonus payments for such Termination Year are otherwise due, and (3) Base Salary
and Benefits from the date of termination through the period that
-6-
7
is the lesser of (x) the period ending on June 30, 2003 or (y) the period ending
on the one year anniversary of the date of termination.
(B) as a result of the Executive's death, the
Executive's estate shall be entitled to receive (1) all previously earned and
accrued but unpaid Base Salary up to the date of such termination and (2) a
portion of the bonus payment earned by the Executive during the Termination Year
pro rated based on the number of days of the Termination Year prior to the date
of termination due to the Executive's death, which such payment will be made
when the bonus payments for such Termination Year are otherwise due, but shall
not be entitled to any further Base Salary, bonus payments or Benefits for that
year or any future year, or to any other severance compensation of any kind,
nature or amount.
(C) as a result of the Executive's Disability,
the Executive shall be entitled to receive (1) all previously earned and accrued
but unpaid Base Salary up to the date of such termination, but shall not be
entitled to any further Base Salary, bonus payments or Benefits for that year or
any future year, or to any other severance compensation of any kind, nature or
amount.
(D) as a result of the Executive's voluntary
resignation other than within 15 days following a Good Reason Event, or by
resolution of the Board for Cause, the Executive shall be entitled to all
previously earned and accrued but unpaid Base Salary up to the date of such
termination but shall not be entitled to any further Base Salary, bonus payments
or Benefits for that year or any future year, or to any other severance
compensation of any kind, nature or amount.
(ii) Following the termination of the Employment Period:
(A) the Executive agrees that: (1) the Executive
shall be entitled to the payments provided for in Section 2(d)(i)(A), if any, if
and only if Executive has not breached as of the date of termination of the
Employment Period the provisions of Sections 3, 4 and 5 hereof and does not
breach such sections at any time during the period for which such payments are
to be made and (2) the Company's obligation to make such payments will terminate
upon the occurrence of any such breach during any such severance period.
(B) any payments pursuant to
Sections 2(d)(i)(A)(1) shall be paid by the Company in regular installments in
accordance with the Company's general payroll practices and shall be subject to
customary withholding, and following such payments none of the Company Group
shall have any further obligation to the Executive pursuant to this Section 2(d)
except as provided by law.
(iii) The Executive hereby agrees that except as expressly
provided herein, no severance compensation of any kind, nature or amount shall
be payable to the Executive and except as expressly provided herein, the
Executive hereby irrevocably waives any claim for severance compensation.
(iv) Except as provided in Section 2(d)(i)(A) above, all
of the Executive's rights to Benefits hereunder (if any) shall cease upon the
termination of the Employment Period.
-7-
8
(v) The Executive has no obligation to seek or obtain
other engagements or employment to mitigate any damages to which the Executive
may be entitled by reason of any termination of this Agreement pursuant to
Sections 2(d)(i)(A). However, if the Executive obtains other engagements or
employment of any nature and in any location, the total compensation actually
earned by the Executive from such other employment or engagements during the
period that he is to receive payments, if any, pursuant to Section 2(d)(i)(A)
shall reduce any amounts which the Company would otherwise be required to pay
the Executive under this Agreement.
3. Confidential Information. The Executive acknowledges that the
information, observations and data obtained by him while employed by the Company
Group concerning the business or affairs of the Company Group, including any
business plans, pricing information, sales figures, profit or loss figures,
information relating to customers, clients, suppliers, sources of supply and
customer lists ("Confidential Information") are the property of such member of
the Company Group. Therefore, the Executive agrees that, except as required by
law or court order, he shall not disclose to any unauthorized person or use for
his own account any Confidential Information without the prior written consent
of the Board, unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a result of
the Executive's acts or omissions to act. The Executive shall deliver to the
Company at the termination of such Executive's employment, or at any other time
the Company may request, all memoranda, notes, plans, records, reports, computer
tapes and software and other documents and data (and copies thereof) relating to
the Confidential Information, Work Product (as defined below) and the business
of the Company Group which he may then possess or have under his control.
4. Inventions and Patents. The Executive agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information which relates to the Company
Group's actual or anticipated business, research and development or existing or
future products or services and which are conceived, developed or made by the
Executive while employed by the Company Group ("Work Product") belong to such
member of the Company Group. The Executive will promptly disclose such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
5. Noncompete, Nonsolicitation.
(a) The Executive acknowledges that in the course of his
employment with the Company he has become familiar, and he will become familiar,
with the Company Group's trade secrets and with other Confidential Information
and that his services have been and will be of special, unique and extraordinary
value to the Company Group. Therefore, the Executive agrees that, during the
time he is employed by the Company Group and during any applicable
Post-Termination Period (the "Noncompete Period"), he shall not directly or
indirectly own, operate, manage, control, participate in, consult with, advise,
provide services for, or in any manner engage in any business (including by
himself or in association with any person, firm, corporate or other business
organization or through any other entity) in competition with, or potential
competition with, the businesses of the Company Group as such businesses exist
or are in process on the date of the termination of the Executive's employment,
within any geographical area in which the Company
-8-
9
Group engages or plans to engage in such businesses. Nothing herein shall
prohibit the Executive from being a passive owner of not more than 2% of the
outstanding stock of a corporation which is publicly traded, so long as the
Executive has no active participation in the business of such corporation. For
purposes of this Section 5, "Post-Termination Period" means, as applicable: the
period beginning on the date of termination through the later of (x) the last
date on which the Executive is restricted pursuant to the provisions of the
Representation and Noncompetition Agreement to be entered into between the
Executive and Sleepmaster as of the date hereof and (y) the last date that the
Executive receives any severance payments; provided that the Company may elect
to extend the Post-Termination Period for an additional one year period by
providing written notice to the Executive 30 days prior to the expiration of the
Post-Termination Period and paying the Executive the Base Salary through the end
of such additional one year period.
(b) During the Noncompete Period, the Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company Group to leave the employ of the Company Group, or
in any way interfere with the relationship between the Company Group and any
employee thereof, including without limitation, inducing or attempting to induce
any union, employee or group of employees to interfere with the business or
operations of the Company Group, (ii) hire any person who was a key employee of
the Company Group unless at least six months have elapsed since the termination
of such key employee's employment with the Company Group, or (iii) induce or
attempt to induce any customer, supplier, distributor, franchisee, licensee or
other business relation of the Company Group to cease doing business with the
Company Group, or in any way interfere with the relationship between any such
customer, supplier, distributor, franchisee, licensee or business relation and
the Company Group.
(c) The Executive agrees that: (i) the covenants set forth in
this Section 5 are reasonable in geographical and temporal scope and in all
other respects, (ii) the Company Group would not have entered into this
Agreement but for the covenants of the Executive contained herein, and (iii) the
covenants contained herein have been made in order to induce the Company Group
to enter into this Agreement.
(d) If, at the time of enforcement of this Section 5, a court
shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
(e) The Executive recognizes and affirms that in the event of
his breach of any provision of Sections 3, 4 or this Section 5, money damages
would be inadequate and the Company Group and the Investor would have no
adequate remedy at law. Accordingly, the Executive agrees that in the event of a
breach or a threatened breach by the Executive of any of the provisions of
Sections 3, 4 or this Section 5, the Company Group, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security).
-9-
10
6. Repurchase Option on Executive Interests. In the event the
Executive ceases to be employed by the Company Group for any reason (the
"Termination"), the Executive Securities (whether held by the Executive or one
or more of the Executive's transferees) will be subject to repurchase by
Holdings and the Investor (or its designees) pursuant to the terms and
conditions set forth in this Section 6 (the "Repurchase Option").
(a) The purchase price for each unit of Executive Securities
will be the Fair Value for such unit; provided, that if the termination of the
Employment Period is by (i) Holdings for Cause or (ii) by the voluntary
resignation of the Executive (other than within 15 days following a Good Reason
Event) prior to the third anniversary of the date hereof, then the purchase
price for each unit of Executive Securities will be the Executive's Original
Cost.
(b) Holdings' board of advisors may elect to cause Holdings to
purchase all or a portion of the Executive Securities by delivering written
notice (the "Repurchase Notice") to the holder or holders of the Executive
Securities within 90 days after the Termination. The Repurchase Notice will set
forth the number of Executive Securities to be acquired from each holder, the
aggregate consideration to be paid for such securities and the time and place
for the closing of the transaction. The number of units of Executive Securities
to be repurchased by Holdings shall first be satisfied to the extent possible
from the Executive Securities held by the Executive at the time of delivery of
the Repurchase Notice. If the number of units of Executive Securities then held
by the Executive is less than the total number of units of Executive Securities
Holdings has elected to purchase, Holdings shall purchase the remaining
Executive Securities elected to be purchased from the other holder(s) of
Executive Securities, pro rata according to the amount of such Executive
Securities held by such other holder(s) at the time of delivery of such
Repurchase Notice (determined as nearly as practicable to the nearest share).
The number of Executive Securities to be repurchased hereunder will be allocated
among the Executive and the other holders of Executive Securities (if any) pro
rata according to the number of units of Executive Securities to be purchased
from such Persons.
(c) If for any reason Holdings does not elect to purchase all
of the units of Executive Securities that are subject to the Repurchase Option,
pursuant to such Repurchase Option, the Investor (or its designees) shall be
entitled to exercise the Repurchase Option for the Executive Securities Holdings
has not elected to purchase (the "Available Securities"). As soon as practicable
after Holdings has determined that there will be Available Securities, but in
any event within 150 days after the Termination, Holdings shall give written
notice (the "Option Notice") to the Investor (or its designees) setting forth
the number of Available Securities and the purchase price for each of such
Available Securities. The Investor (or its designees) may elect to purchase all,
but not less than all, of the Available Securities by giving written notice to
Holdings within 45 days after the Option Notice has been given by Holdings. As
soon as practicable, and in any event within ten days after the expiration of
the 45-day period set forth above, Holdings shall notify each holder of
Executive Securities as to the number of Executive Securities being purchased
from such holder by the Investor (or its designees) (the "Supplemental
Repurchase Notice"). At the time Holdings delivers the Supplemental Repurchase
Notice to the holder(s) of such Executive Securities, Holdings shall also
deliver written notice to the Investor (or its designees) setting forth the
number of Executive Securities which the Investor (or its designees) is entitled
to purchase, the aggregate purchase price and the time and place of the closing
of the transaction. For the avoidance of doubt, Holdings may
-10-
11
not exercise its Repurchase Option unless Holdings and/or the Investor elect to
purchase all of the Executive Securities that are subject to the Repurchase
Option.
(d) The closing of the purchase of the Executive Securities
pursuant to the Repurchase Option shall take place on the date designated by
Holdings in the Repurchase Notice or Supplemental Repurchase Notice, which date
shall not be later than the 30th day after the delivery of the later of such
notices to be delivered (or, if later, the 15th day after the Fair Value is
finally determined) nor earlier than the fifth day after such delivery. Holdings
and/or the Investor (or its designee) will pay for the Executive Securities to
be purchased pursuant to the Repurchase Option by delivery of a certified or
cashier's check or wire transfer of funds. The purchasers of Executive
Securities hereunder will be entitled to receive customary representations and
warranties from the sellers as to title, authority and capacity to sell.
(e) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Executive Securities by Holdings shall be subject
to applicable legal restrictions. If any such restrictions prohibit the
repurchase of Executive Securities hereunder which Holdings is otherwise
entitled to make, Holdings may make such repurchases as soon as it is permitted
to do so under such restrictions.
(f) If a registration statement relating to Qualified Public
Offering shall have been filed or a definitive agreement for the Sale of
Holdings shall be entered into within six months of the consummation of the
repurchase of Executive Securities pursuant to this Section 6, then with respect
to each Executive Security sold by the Executive pursuant to this Section 6, the
Executive shall be entitled to receive, at the time of consummation of the
Qualified Public Offering or the Sale of Holdings, as the case may be, an amount
equal to the difference, if any, between (i) the per unit consideration received
by Holdings or the Investor in connection with the Qualified Public Offering or
the Sale of Holdings, and (ii) the repurchase price of the Executive Securities,
per unit paid to the Executive; provided, that if the termination of the
Executive's employment with the Company is (A) by the Company for Cause or (B)
as a result of the voluntary resignation of the Executive prior to the third
anniversary date of the date hereof (other than within 15 days following a Good
Reason Event) this Section 8(f) shall not apply.
7. Restrictions on Transfer.
(a) If certificated, the Executive Securities will bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
'ACT'), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION
FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS
SET FORTH IN AN EMPLOYMENT AND MANAGEMENT SECURITIES
-11-
12
AGREEMENT BETWEEN THE ISSUER AND THE SIGNATORY THERETO DATED AS OF
JUNE 30, 2000. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE
HOLDER HEREOF AT THE ISSUER'S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE."
(b) No holder of Executive Securities may sell, transfer or
dispose of any units of Executive Securities (except pursuant to an effective
registration statement under the Securities Act) without first delivering to
Holdings an opinion of counsel (reasonably acceptable in form and substance to
Holdings, which opinion requirement may be waived by Holdings), that neither
registration nor qualification under the Securities Act and applicable state
securities laws is required in connection with such transfer.
(c) Each holder of Executive Securities agrees not to effect
any sale or distribution of any Executive Securities or other equity securities
of Holdings, or any securities convertible into or exchangeable or exercisable
for any of Holdings's equity securities, during the seven days prior to and the
120 days (or, subject to the requirements of the underwriters, up to 180 days)
after the effectiveness of any underwritten public offering, except as part of
such underwritten public offering or if otherwise permitted by Holdings.
(d) The Executive acknowledges that the Executive Securities,
when issued, will be subject to additional restrictions contained in the
Securityholders Agreement.
8. Representations and Warranties of the Holdings. Holdings hereby
represents and warrants to the Executive that the issued and outstanding units
of Holdings consist of (i) 8,511.22 units of Class A Common, (ii) no units of
Class B Common, (iii) 7,667.24 units of Class C Common, and (iv) 37,606.10 units
of Preferred Units. All of the outstanding units of Holdings' are validly
issued, fully paid and nonassessable.
9. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient with telephonic confirmation by the sending party. Such notices,
demands and other communications will be sent to the address indicated below:
To the Company:
Crescent Sleep Products Company
X.X. Xxx 0000
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
-12-
13
With copies to:
Sleepmaster L.L.C.
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxxx Xxxxx
Telecopy No.: (000) 000-0000
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
To any other Member of the Company Group or the Investor:
c/o Sleepmaster L.L.C.
0000 Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
With copies to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxxx Xxxxx
Telecopy No.: (000) 000-0000
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
-13-
14
To the Executive:
x/x Xxxxxxxx Xxxxx Products Company
X.X. Xxx 0000
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
Schell, Bray, Xxxxxx, Xxxx & Xxxxxxxxxx
000 Xxxxx Xxx Xx.
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx, Esq.
Telecopy No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
10. Miscellaneous.
(a) Transfers in Violation of Agreement. Any transfer or
attempted transfer of any Executive Securities in violation of any provision of
this Agreement shall be null and void, and Holdings shall not record such
transfer on its books or treat any purported transferee of such Executive
Securities as the owner of such securities for any purpose.
(b) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. This Agreement, the Joinder Agreement,
the Securityholders Agreement and the Merger Agreement embody the complete
agreement and understanding among the parties and supersede and preempt 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,
including, without limitation, the Previous Agreement.
(d) 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.
-14-
15
(e) Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Executive, the Company Group, and the Investor and their respective
successors and assigns (including subsequent holders of Executive Securities);
provided that the rights and obligations of the Executive under this Agreement
shall not be assignable except in connection with a permitted transfer of
Executive Securities hereunder.
(f) Third Party Beneficiary. This Agreement is intended for the
benefit of, and will be enforceable by, the Investor.
(g) GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS HERETO WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
NORTH CAROLINA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF NORTH CAROLINA OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NORTH CAROLINA; PROVIDED, THAT ANY QUESTIONS REQUIRING
INTERPRETATION OF THE LAWS GOVERNING LIMITED LIABILITY COMPANIES SHALL BE
GOVERNED BY THE NEW JERSEY LIMITED LIABILITY COMPANY ACT.
(h) Remedies. Each of the parties to this Agreement (including
the Investor) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs caused by 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 may
in its sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or deposit) for specific performance
and/or other injunctive relief in order to enforce or prevent any violations of
the provisions of this Agreement.
(i) Amendment and Waiver. The provisions of this Agreement may
be amended and waived only with the prior written consent of the Company, the
Executive and the Investor.
* * * * *
-15-
16
IN WITNESS WHEREOF, the parties hereto have executed this
Employment and Management Securities Agreement as of the date first written
above.
SLEEPMASTER HOLDINGS L.L.C.
By: /S/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
SLEEPMASTER L.L.C.
By: /S/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
CRESCENT SLEEP PRODUCTS COMPANY
By: /S/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
/S/ Xxxxxx Xxxxxxxxxx
---------------------
XXXXXX XXXXXXXXXX
Agreed and Accepted:
SLEEP INVESTOR L.L.C.
By: /S/ Xxxxx X. Xxxxxxx
--------------------
Name:
Title:
17
SCHEDULE A
EMPLOYEE BENEFITS
Life & Supplemental Insurance and Accidental Death & Dismemberment
Health and Dental Insurance
Section 125 Plan for Health and Dental Insurance
Long Term Care
Long Term Disability
Short Term Disability
Profit Sharing Plan
Vacation Pay and Holiday Pay
Car Allowance and car expenses. The Company pays for gas, service and repairs.
Promotional trip and spouses travel with customers on these trips.
Travel and Entertainment Expenses: Executive is reimbursed for company-related
travel and entertainment expenses, subject to customary reporting
requirements.
Company-related expenses: The Company reimburses Executive for all
company-related expenses, subject to customary reporting requirements.
ALL BENEFITS PROVIDED TO THE EXECUTIVE
SHALL BE SUBSTANTIALLY EQUIVALENT IN THE
AGGREGATE TO THE BENEFITS PROVIDED BY
CRESCENT SLEEP PRODUCTS COMPANY
IMMEDIATELY PRIOR TO THE DATE HEREOF.
Schedule A, Page 1
