Exhibit 10.11.15
SEPARATION AGREEMENT AND RELEASE
THIS SEVERANCE AGREEMENT and RELEASE ("Agreement") is entered into between
Xxxx X. Xxxxxx ("the Executive') and Foamex International Inc., Foamex L.P., and
all other affiliates and subsidiaries of Foamex International Inc. (collectively
"Foamex"). The Executive and Foamex are entering into this Agreement because the
Executive's employment with Foamex is terminating and the parties (a) wish to
define the terms of the Executive's separation from employment, and (b) wish to
amicably resolve any and all claims and disputes which have been (or could have
been) asserted by the Executive against Foamex. The Executive and Foamex agree
that termination of the Executive's employment is for legitimate business
reasons. This Agreement will supercede any previous Agreements between the
parties.
Specific terms and conditions:
1 Termination of Employment. The Executive's last day of work shall be July
31, 2004 (hereafter the "Separation Date") however the Executive has resigned
all positions as an officer or director with all Foamex related Companies
effective May 25, 2004.
2 Transition Payments and Benefits. The Executive will continue to receive
his current monthly salary of $25,834 through July 31, 2004 and continue to
participate in health and welfare benefits offered by Foamex for the same time
period. The executive shall also have the right to use the Foamex apartment in
New York, NY through July 31, 2004. After July 31, 2004, the Executive shall be
entitled to continue participating in Foamex medical plans at his expense in
accordance with his rights under COBRA.
3 Other Benefits - Stock Options and Moving Allowance. Foamex will extend
the Executives right to exercise his stock options vested as of July 31, 2004
for a period of one year (through July 31, 2005). In addition Foamex will
provide a one time moving allowance of $25,000 to assist the Executive in
relocating from New York. In addition, Foamex recognizes its obligations
concerning the Executive's contractual right to five percent of any dividend
Foamex L.P. receives from the Foamex Asia joint venture. Foamex will also pay
the $3,500 due the executive associated with the 2003 dividend.
4 Non-Competition. Except concerning the Executive's interest in Foamex
Asia, for a period of twelve months beginning on the Separation Date the
Executive shall not for any reason, either directly or indirectly, participate,
engage, or have a financial interest in a "Competing Business" as an owner,
employee, agent, consultant, proprietor, shareholder, partner, advisor, Board of
Director, or otherwise; in the states (and/or commonwealth) where Foamex
operates or has an existing customer base. For purposes of this Agreement, a
"Competing Business" is defined as any individual, corporation, partnership,
entity, and/or other form of business which manufactures, sells and/ or
otherwise distributes products identical or similar to
those manufactured, sold and/or otherwise distributed by Foamex during the
Executive's tenure with Foamex.
5 No Solicitation. For a period of twelve months beginning on the
Separation Date the Executive agrees that he will not directly or indirect
solicit or encourage Foamex employees to terminate their employment with Foamex,
and/or to become employed by or work with the Executive or any third party.
During this period the Executive also agrees that he will not interfere in any
way with Foamex's business relationships with its customers, suppliers, vendors,
representatives, agents and/or employees.
6 Acknowledgment of Non-Competition and No Solicitation Provisions. The
Executive expressly acknowledges and agrees that (a) he understands the scope
and meaning of the restrictions set forth in sections 4 and 5 of this Agreement,
(b) agrees that they are necessary and reasonable to protect Foamex's legitimate
interests, (c) agrees that he has been well compensated though this Agreement
for agreeing to these restrictions, (d) agrees that these restrictions will not
prevent him from engaging in gainful and meaningful employment during their
twelve-month term. Failure to comply with any term set forth in sections 4
and/or 5 of this Agreement will result in the Executive's forfeiture of the
severance payment, but shall not relieve the Executive of his obligations under
this Agreement.
7 Nondisparagement. The Executive agrees that he will not make any
disparaging, defamatory or denigrating statements regarding Foamex or any of its
businesses, employees, agents, officers or directors. Foamex agrees that it will
not make and that it will make its best effort to cause its officers, directors
and other spokespersons to refrain from making, any disparaging, defamatory or
denigrating statements about the Executive or his role.
8 Confidential Corporate Information. The Executive will maintain the
confidentiality of Foamex's Confidential Corporate Information. "Confidential
Corporate Information" as used in this Agreement means: (i) confidential,
proprietary, commercially-sensitive, or otherwise secret information, knowledge,
data analyses, or reports concerning the Company's businesses, legal affairs,
products, services, methods, customers, customer-related information, budgets,
finance, financial reports and financial projections, data and programs,
computer software and management information systems, marketing strategies and
forecasts, personnel, prices, costs, business plans, purchasing, research and
development, data processing, engineering, inventions, improvements,
discoveries, innovations, and ideas, whether potentially subject to a patent or
not; (ii) nonpublic information about mergers, acquisitions, securities
offerings, or other transactions involving Foamex; (iii) information bearing the
legend or conspicuously marked as "Confidential" or "Proprietary," or language
of like import; and (iv) all other information that a reasonable employee would
regard as confidential, proprietary, commercially-sensitive or secret.
Confidential Corporate Information also includes such information for
subsidiaries or other affiliates of Foamex. Confidential Corporate Information
may be in a tangible or intangible form, and communicated visually, orally, in
writing, or
electronically. Confidential Corporate Information does not include information
that is, or becomes, available to the public generally.
9 General Release. In consideration for the severance payments paid by
Foamex as set forth above, and other good and valuable consideration set forth
herein, the Executive hereby releases Foamex, its shareholders, directors,
officers, employees, agents, attorneys, affiliates, parents, subsidiaries,
predecessors, successors, assigns, and all persons acting by, through, under or
in concert with any of them, from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses, and
from any claims of any nature whatsoever, except for vested pension benefits
under Employment Retirement Income Security Act ("ERISA"), known or unknown,
which the Executive now has, claims to have, own, hold or which the Executive at
any time heretofore had, held, or claims to have, including without limitation,
claims for: wrongful discharge; breach of covenant of good faith and fair
dealing; intentional or negligent infliction of emotional distress; breach of
contract or implied contract; negligence; misrepresentation; fraud; detrimental
reliance; promissory estoppel; defamation; invasion of privacy; sexual
harassment; breach of laws governing safety in the workplace; discrimination on
the basis of sex, race, color, religion, age, national origin, status as a
handicapped of disabled person or status of a non-citizen; any and all claims
under the Age Discrimination in Employment Act ("ADEA"); any and all claims
under Title VII of the Civil Rights Act of 1964; any and all claims under the
Americans with Disabilities Act; any and all claims under state or local laws
which prohibit improper discrimination; and any and all claims for benefits
under the ERISA, except for all claims for vested pension benefits under ERISA.
10 No Right to Re-employment. The Executive hereby agrees and recognizes
that his employment relationship with Foamex or its affiliates is being
permanently and irrevocably severed and that Foamex has no obligation,
contractual or otherwise, to rehire, re-employ, recall or to hire him in the
future, or return him to active status.
11 Cooperative Conduct. The Executive hereby agrees as part of the
consideration for Foamex's payments hereunder to cooperate with reasonable
requests by Foamex, in good faith and in a continuing manner.
12 Additional Covenants and Acknowledgments. The Executive further
understands and agrees:
a) that by signing this Agreement he is voluntarily making a full and
final compromise and settlement of any and all claims, disputed or
otherwise, arising out of his employment relationship with Foamex including
claims under the Age Discrimination in Employment Act (ADEA) which he may
have, and that this Agreement will preclude any
further or additional claims arising out of said relationship, but will not
preclude any claims which might arise after the Agreement is executed;
b) that, in accordance with the federal law, the Executive has
twenty-one (21) calendar days from the date this Agreement is received by
him to consider and accept the Agreement by signing and returning it to
Foamex, and if so accepted, another seven (7) calendar days to revoke that
acceptance should he change his mind;
c) that the Executive has the right to consult any attorney prior to
signing this Agreement and has been encouraged to do so by Foamex;
d) that Foamex and the Executive have agreed that the terms of the
Agreement are and shall remain completely confidential, except that the
parties may disclose the terms of this Agreement to legal counsel and tax
advisors or as otherwise required by law. In addition, Foamex may disclose
the terms of this Agreement to those individuals whose services are
required to authorize, implement, or enforce the terms of this Agreement.
It is understood and agreed by the Executive and Foamex, that those to whom
disclosure may be made under this provision, also must keep the terms of
this Agreement confidential;
e) that the Executive acknowledges that this Agreement is contractual
and not a mere recital; and agrees that this Agreement shall be given full
force and effect and that it shall be binding upon the Executive's heirs,
executors, successors, administrators and assigns.
13 Parties Covered by Agreement. The provisions of this Agreement shall
inure to the benefit of Foamex, its successors and assigns, and shall be binding
upon Foamex and the Executive, and his heirs, personal representatives, and
successors, including, without limitation, the Executive's estate and executors,
administrators, or trustees of such estate. In the event of the sale, merger, or
consolidation of Foamex with or into any other corporation or entity, or in the
event substantially all of the assets of Foamex shall be transferred to another
entity, the successor to such assets, as the case may be, shall, as a condition
to the consummation of the merger, consolidation, or sale, assume the
obligations of Foamex hereunder and shall be substituted for Foamex in all
respects.
14 Severability. The invalidity or unenforceability of any provision or
part of any provision of this Agreement or any covenant contained herein shall
not affect the validity or enforceability of any other provision or part of any
provision of this Agreement, which shall remain in full force and effect. In the
event that any provision of this Agreement (or part thereof)
is determined to be invalid or unenforceable for any reason, that provision
shall be construed by limiting it so as to be valid and enforceable to the
fullest extent compatible with and possible under applicable law.
15 Application of Agreement. Upon execution of this Agreement, the
Executive's employment with Foamex and termination thereof shall be governed
exclusively by this Severance Agreement and Release, and this Agreement shall
supersede any and all previously existing agreements and understandings between
the parties.
16 Period for Acceptance of Agreement. The terms of this Agreement shall
remain open for acceptance by the Executive at any time before and including
twenty-one (21) calendar days from the date this Agreement is received by the
Executive. Should the Executive decline to execute this Agreement it is
understood that the terms contained and offered herein are withdrawn without
prejudice to the rights of Foamex.
17 Applicable Law. The Agreement shall be construed and enforced under and
in accordance with the laws of the Commonwealth of Pennsylvania.
18 Indemnification - Foamex agrees that it will indemnify and defend
Executive from any claims arising from his service as an officer or employee of
Foamex to the extent provided in its articles of incorporation, by-laws or
similar governing documents and will be entitled to the benefit of directors'
and officers' insurance coverage to the same extent as any present or future
officer or director.
(The Balance of this Page is Intentionally Left Blank)
The Executive represents and certifies that he has carefully read and fully
understands all of the provisions of this Agreement and that he is signing this
Agreement voluntarily, of his own free will and without duress; and that Foamex,
its agents, representatives or attorneys have made no representations concerning
the terms or effects of this Agreement other than contained herein.
IN WITNESS THEREOF, the Executive has duly executed this Release and
Agreement on this day of June 19, 2004.
/s/ Xxxx X. Xxxxxx June 19, 2004
_________________________________ ________________________
Executive Date
/s/ Xxxxxxx X. Xxxxxxxxx June 25, 2004
_________________________________ ________________________
For Foamex International Inc. Date
Foamex L.P., and Subsidiaries
