AMENDED AND RESTATED CONSULTING AGREEMENT
THIS AGREEMENT, effective as of the 27th day of February, 2005, by and
between Foamex L.P., a Delaware limited partnership, having an office at 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 (the "Company"), and Xxxxxx X. Xxx (the
"Consultant").
WITNESSETH:
WHEREAS, the Company and Consultant entered into a consulting agreement,
effective as of April 24, 2001 (the "Agreement"), for the purpose of utilizing
Consultant's business expertise.
WHEREAS, the parties desire to amend and restate the Agreement. For
purposes of this Agreement, the Company, Foamex International Inc., and its
subsidiaries and its affiliates shall collectively be referred to herein as
"Foamex".
NOW, THEREFORE, intending to legally bound the parties hereby agree as
follows:
1. RETENTION AND DESCRIPTION OF SERVICES: During the term of this Agreement,
Consultant shall work with Foamex's senior and operations management to
develop best practices for Foamex's: (i) chemical conversion, (ii)
fabrication, and (iii) other supply chain-related activities. Consultant
shall devote such time to performing the services as may be reasonably
required.
2. TERM OF AGREEMENT: Consultant's services shall be available on an ongoing
basis as requested and required by the Company. The term of this Agreement
shall be one (1) year (the "Initial Term"). Upon expiration of the Initial
Term, the Agreement shall automatically renew for successive one-year
periods (each, a "Renewal Term"), unless either party provides at least
thirty (30) days prior written notice of termination prior to the end of
the Initial Term or any Renewal Term.
3. WHERE SERVICES ARE TO BE PERFORMED: Consultant's services shall be
performed at locations requested by the Company.
4. COMPENSATION: The Company shall pay Consultant a consulting fee (the
"Consulting Fee") of $80,000 per year ($6,666.66 per month) for services
provided under this Agreement. Payment of the Consulting Fee to Consultant
shall be made upon receipt of and approval of Consultant's invoice for the
services.
5. TRAVEL AND OTHER EXPENSES: The Company shall reimburse Consultant for all
authorized expenses incurred by Consultant for travel or other reasonable
expenses as required in connection with the furnishing of services under
this Agreement. Reimbursement of such 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.
6. CONSULTANT AN INDEPENDENT CONTRACTOR: Consultant shall furnish Consultant's
services as an independent contractor and not as an employee of the
Company. If the Company is required to pay or withhold any taxes or make
any other payment with respect to fees payable to Consultant pursuant to
this Agreement, Consultant shall reimburse the Company in full for taxes
required to be withheld from any sum due Consultant.
7. CONSULTANT NOT TO ENGAGE IN CONFLICTING ACTIVITIES:
(a) In consideration of the Company entering into this Agreement,
Consultant agrees that during the term of this Agreement, he shall not,
directly or indirectly:
(1) solicit, raid, encourage, entice or induce any employee of
Foamex to be employed by any person, firm or corporation which
is, directly or indirectly, in competition with the business or
activities of Foamex;
(2) interfere with the business relationships of Foamex and the
customers and suppliers of Foamex; 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.
(b) As further consideration for the Company entering into this
Agreement, Consultant agrees that during the term of this Agreement, he
shall not become an employee of, or a consultant or adviser to, or 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 directly or
indirectly in competition with the business of Foamex. Nothing herein
contained shall be deemed to prohibit Consultant from 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 outstanding.
(c) Consultant acknowledges that the provisions of this Section 7 are
reasonable and necessary for the protection of Foamex, 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, 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.
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(d) Consultant acknowledges and agrees that Foamex's remedies at law
for a breach or threatened breach of any of the provisions of Section 7
would be inadequate and, in recognition of this fact, Consultant agrees
that, in the event of such a breach or threatened breach in addition to any
remedies at law, Foamex shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be
available.
8. TRADE SECRETS AND INVENTIONS:
(a) Consultant shall hold in a fiduciary capacity for the benefit of
Foamex all secret or confidential information, knowledge or data relating
to Foamex and its businesses which shall have been obtained by Consultant
during his service with Foamex which is not public knowledge or which
becomes public knowledge solely by Consultant's actions in violation of
this Agreement. After the termination of this Agreement, Consultant shall
not, without the prior written consent of Foamex, communicate or divulge
any such information, knowledge or data to anyone other than Foamex and
those designated by it.
(b) Consultant assigns and agrees to assign to the Company or its
nominee all rights in inventions or other proprietary information conceived
by Consultant during the term of this Agreement with respect to any work
that Consultant performs under this Agreement.
9. ASSIGNMENT: This Agreement is personal in its nature and the parties shall
not, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder; provided, however, that the Company
may assign this Agreement to any corporation or person which may acquire
all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement is
binding upon, inures to the benefit of and is enforceable by the parties
and their respective successors and permitted assigns.
10. WAIVER OF BREACH: The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
of such party's rights or deprive such part of the right thereafter to
insist upon strict adherence to that term or any other term of the
Agreement.
11. ENTIRE AGREEMENT; AMENDMENTS: This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and supersedes all
agreements or understanding among the parties with respect thereto. This
Agreement may be amended only by an agreement in writing signed by the
parties.
12. COUNTERPARTS: The Agreement may be executed in counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
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13. GOVERNING LAW: This Agreement shall be governed by, and construed and
interpreted in accordance with, the internal laws of the Commonwealth of
Pennsylvania without reference to the principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto having reviewed the terms and
conditions set forth above have signed this Agreement on the date first written
above.
Foamex L.P. Consultant
By: /s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxx
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Name: Xxxxxxx X. Xxxxxxxxx XXXXXX X. XXX
Title: Executive Vice President
and General Counsel
