AGREEMENT WITH CONSULTANT
1. INTRODUCTION: Agreement dated April 24, 2001, by and between Xxxxxx X. Xxx,
00 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxx, X.X. 00000 (Consultant), and Foamex L.P.
with principal offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 (Client).
2. RETENTION AND DESCRIPTION OF SERVICES: During the term of this Agreement,
Consultant will furnish consulting services and advice on business and
manufacturing initiatives for Client's joint venture in Asia and other
services as directed by the CEO or the Board of Directors of Client.
Consultant's services will be available to Client for a maximum of (30)
thirty days per year.
3. TERM OF AGREEMENT: The term of this Agreement shall be two years beginning
July 1, 2001. This Agreement will renew automatically for successive
one-year terms unless Client provides notice to consultant of its intent to
terminate the agreement at least (30) thirty days prior to the expiration
of any one year term. Consultant may terminate this Agreement at any time,
provided that Consultant provides Client a minimum of (30) thirty days
notice.
4. WHERE SERVICES ARE TO BE PERFORMED: Consultant's services will be performed
at the Client's Linwood, Pennsylvania office and such other United States
and foreign locations that are appropriate as deemed by Client. Meetings
will be scheduled in advance with defined objectives.
5. COMPENSATION: Client will pay Consultant a consulting fee of five thousand
dollars ($5,000) per month for work performed by under this Agreement.
Payment to Consultant shall be made at the conclusion of each month upon
receipt of and approval of Consultant's invoice for services and expenses.
6. REIMBURSEMENT OF TRAVEL AND OTHER EXPENSES: Client will reimburse
Consultant for all authorized expenses incurred by Consultant for travel or
other reasonable expenses as required in connection with the furnishing
services under this Agreement. Reimbursement of travel expenses shall be
made on the basis of itemized statements submitted by Consultant and
including, whenever possible, actual bills, receipts, or other evidence of
expenditures.
7. CONSULTANT AN INDEPENDENT CONTRACTOR: Consultant will furnish Consultant's
services as an independent contractor and not as an employee of client or
of any company affiliated with Client. If Client or any of its affiliated
companies is required to pay or withhold any taxes or make any other
payment with respect to
Page 1 of 3
8. fees payable to Consultant pursuant to this Agreement, Consultant will
reimburse Client or the affiliated company in full for taxes required to be
withheld from any sum due Consultant.
9. CONSULTANT NOT TO ENGAGE IN CONFLICTING ACTIVITIES:
(a) In consideration of the Client's entering into this Agreement,
Consultant agrees that during the period of this Agreement hereunder,
and for a further period of three months thereafter, he shall not,
directly or indirectly:
(1) solicit, raid, entice or induce any employee or customer of the
Client or any of its subsidiaries or affiliates to be employed or
serviced or supplied, as the case may be, by any person, firm or
corporation which is, directly or indirectly, in competition
which is, directly or indirectly, in competition with the
business or activities of the Client or any of its subsidiaries
or affiliated companies;
(2) approach any such employee for these purposes; or
(3) authorize or knowingly approve the taking of such actions by
other persons on behalf of any such person, firm or corporation,
or assist any such person, firm or corporation in taking such
action; or
(4) during the term of this Agreement by the client, whether under
this agreement or otherwise, Consultant agrees that he shall not
directly or indirectly, own, control, participate in, invest in,
or otherwise acquire an equity position in, whether as a
shareholder, partner, joint venture, investor or otherwise, any
business entity which is in competition with the business of the
Client. Nothing herein contained shall be deemed to prohibit
Consultant form investing his funds in securities of a company if
the securities of such company are listed for trading on a
national stock exchange or traded in the over-the-counter market
and Consultant's holdings therein represent less than one percent
(1%) of the total number of shares or principal amount of other
securities of such company outstanding.
(b) Consultant acknowledges that the provisions of this Section 9 are
reasonable and necessary for the protection of the Client, and that
each provision, and the period of time and types and scope of
restrictions on the activities specified herein are, and are intended
to be, divisible. In the event that any provision of this section or
the Agreement, including any sentence,
Page 2 of 3
clause or part hereof, shall be deemed contrary to law or invalid or
unenforceable in any respect by a court of competent jurisdiction, the
remaining provisions shall not be affected, but shall, subject to the
discretion of such court, remain in full force and effect and any
invalid and unenforceable provision shall be deemed, without further
action on the part of the parties hereto, modified, amended and
limited to the extent necessary to render the same valid and
unenforceable.
10. TRADE SECRETS AND INVENTIONS: Consultant will treat as proprietary any
information belonging to Client, its affiliated companies, or any third
parties, disclosed to Consultant in the course of Consultant's services.
Consultant assigns and agrees to assign to Client or its nominee all rights
in inventions or other proprietary information conceived by Consultation
during the term of this Agreement with respect to any work that Consultant
performs under this Agreement.
11. INSIDE INFORMATION - SECURITIES LAWS VIOLATIONS: In the course of the
performance off Consultant's duties, it is expected that Consultant will
receive information which is considered material inside information within
the meaning and intent of the Federal Securities Laws, Rules and
Regulations. Consultant will not disclose this information to others except
as authorized by Client and will not use this information directly or
indirectly for Consultant or as a basis for advise to any other party
concerning any discussion to buy, sell, or otherwise deal in Client's
securities or those of any of its affiliated companies.
12. GOVERNING LAW: This Agreement is subject to and shall be interpreted in
accordance with the laws of the State of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto having reviewed the terms and conditions
set forth above have signed this Agreement on the date first referenced above.
-------------------------- ------------------------
Xxxxxx X. Xxx By: Xxxxx Xxx Xxxx
Consultant Foamex LP
Client
Page 3 of 3
