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TIME RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS AGREEMENT (the "Agreement") is made, effective as of the date set forth on
Appendix A of this Agreement (such date, the "Grant Date"), between Sealy Corporation, a Delaware corporation (hereinafter called the
"Company"), and the individual named on Appendix A of this Agreement who is an employee of the Company or a Subsidiary (hereinafter referred to
as the "Employee"). For purposes of this Agreement, capitalized terms not otherwise defined above or below or in the Amended and Restated Equity Plan
for Key Employees of Sealy Corporation and its Subsidiaries, effective December 16, 2008, as it may be amended from time to time (the "Plan")
shall have the meanings set forth in Section 17 of this Agreement.
the Company desires to grant the Employee restricted stock unit awards as provided for hereunder (collectively, the "RSUs"),
ultimately payable in Common Stock pursuant to the terms of the Plan which terms are hereby incorporated by reference and made a part of this Agreement; and
the Committee has determined that it would be to the advantage and best interests of the Company and its shareholders to grant the shares of Common Stock provided for herein to
the Employee as an incentive for increased efforts during his or her employment with the Company or a Subsidiary, and has advised the Company thereof and instructed the undersigned officer to grant
THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby
agree as follows:
1. Grant of the RSUs. Subject to the terms and conditions of the Plan and the additional terms and conditions
set forth in this Agreement:
(a) Initial RSU Award Amount. The Company hereby grants to the Employee the number of RSUs set forth on
Appendix A of this Agreement as the "Initial RSU Award Amount". An RSU represents the right to
receive one share of Common Stock.
(b) Accretion of Initial RSU Amount. The Initial RSU Amount shall accrete on the terms set forth on
Appendix A ("Accretion Terms"), if accretion terms are provided on Appendix A.
(c) Total RSU Award Amount. As the result of the Accretion Terms, the Employee has the opportunity to vest in up
to the number RSUs set forth on Appendix A as the "Total RSU Award Amount". The Total RSU Award Amount is the number of
Units in the Initial RSU Award Amount accreted under the accretion terms set forth on Appendix A, if accretion terms are provided on Appendix A.
(a) General Rule. Unless otherwise provided in this Agreement, so long as the Employee continues to be employed
by the Company or any of its Subsidiaries through a Vesting Date (as such term is defined on Appendix A of this Agreement, the Employee shall, on such Vesting Date, become vested in a number of
RSUs, indicated under Section 9 of Appendix A of this Agreement for such Vesting Date.
(b) Resignation of Employment; Any Termination by the Company. Notwithstanding the general rule set forth in
Section 2(a) above, if, prior to any Vesting Date (and absent the occurrence of any Change in Control), the Employee's employment with Company and its Subsidiaries is terminated for any reason
(x) by the Employee (other than due to the Employee's death or Disability) or (y) by the Company or any of its Subsidiaries, then all RSUs granted hereunder that have not vested as of
such termination date shall be forfeited by the Employee without consideration as of such termination date.
(c) Death of Employee. Notwithstanding anything herein to the contrary, if, prior to any Vesting Date (and
absent the occurrence of any Change in Control), the Employee's employment with the Company and its Subsidiaries is terminated due to the Employee's death (the date of such termination, the
"Death Termination Date"), then all RSUs granted hereunder that have not vested as of such date,
including any accretion earned on those RSUs prior to such termination, shall immediately become vested on the Death Termination Date. The Employee shall be entitled to receive a distribution of a
number of shares of Common Stock equal to the number of units vested under this section 2(c), no later than the later of (x) ninety (90) days following the Death Termination Date
and (y) December 31 of the year in which the Death Termination Date occurs.
(d) Disability of Employee. Notwithstanding anything herein to the contrary, if, prior to any Vesting Date (and
absent the occurrence of any Change in Control), the Employee's employment with the Company and its Subsidiaries is terminated due to the Employee's Disability (such termination date, the
"Disability Termination Date"), then all RSUs granted hereunder that have not vested as of such date, including any accretion earned on those RSUs prior
to such termination, shall immediately become earned and vested on the Disability Termination Date. The Employee shall be entitled to receive, a distribution of a number of shares of Common Stock
equal to the number of units vested under this section 2(c), as soon as administratively feasible following the Disability Termination Date (but in no event more than ninety (90) days
following such date).
(e) Change in Control. Notwithstanding anything herein to the contrary, if there occurs a Change in Control
prior to a Vesting Date, and the Employee is still employed with the Company or any of its Subsidiaries upon the occurrence of such Change in Control (such date, the "Change in
Control Date"), then all RSUs granted hereunder that have not vested as of such date shall immediately vest, including any
accretion earned on those RSUs prior to such Change in Control Date. The Employee shall be entitled to receive a distribution of a number of shares of Common Stock equal to the number of units,
including accretion, vested under this section 2(e), as soon as administratively feasible after the Change in Control Date (but in no event later than ninety (90) days following such
3. Settlement of RSUs. Subject to earlier distribution pursuant to Section 2(c), (d) or
(e) above, for each vesting that occurs pursuant to Section 2(a) above, the Company shall distribute to the Employee a number of shares of Common Stock representing the number of RSUs
that vested pursuant to Section 2(a) above on such Vesting date.
4. No Dividend Equivalents. Unless and until the Employee is the record holder of the Common Stock subject to
the RSUs, he or she is not entitled to the payment of any dividends (or dividend equivalents) with respect to the RSUs or the shares of Common Stock subject thereto.
5. Limitation on Obligations. The Company's obligation with respect to the RSUs granted hereunder is limited
solely to the delivery to the Employee of shares of Common Stock on the date when such Shares are due to be delivered hereunder, and in no way shall the Company become obligated to pay cash in respect
of such obligation, unless as otherwise provided for herein. The RSUs granted hereunder shall not be secured by any specific assets of the Company or any of its Subsidiaries, nor shall any assets of
the Company or any of its Subsidiaries be designated as attributable or allocated to the satisfaction of the Company's obligations under this Agreement.
6. Rights as a Stockholder. The Employee shall not have any rights of a common stockholder of the Company unless
and until the Employee becomes entitled to receive the shares of Common Stock pursuant to Section 2 or 3 above. As soon as practicable following the date that the Employee becomes entitled to
receive the shares of Common Stock pursuant to Section 2 or 3 above, certificates for the Common Stock shall be delivered to the Employee or to the Employee's legal guardian or representative.
7. Transferability. The RSUs shall not be subject to alienation, garnishment, execution or levy of any kind, and
any attempt to cause any such awards to be so subjected shall not be recognized. The shares of Common Stock acquired by the Employee pursuant to Section 2 or 3 of this Agreement may not at any
time be transferred, sold, assigned, pledged, hypothecated or otherwise disposed of unless such transfer, sale, assignment, pledge, hypothecation or other disposition complies with applicable
8. No Right to Continued Employment or Other Equity Awards. The granting of the RSUs evidenced hereby and this
Agreement shall impose no obligation on the Company or any Subsidiary to (a) continue the employment of the Employee and shall not lessen or affect the Company's or any Subsidiary's right to
terminate the employment of such Employee or (b) make any future Share or Share-based awards to the Employee, and this grant of RSUs does not constitute any increase of annual compensation or
benefits to be provided to the Employee.
9. Restrictive Covenants. The content, terms and conditions of the provision/section entitled Confidential Information; Covenant Not to Compete
in the Management Stockholder's Agreement entered into between the Company and the Employee, dated as
of the date set forth on Appendix A of this Agreement (the "MSA") are hereby incorporated by reference into this Agreement. Additional terms and
conditions in the MSA related to non-competition, non-solicitation and confidentiality, including the terms relating to breach or conflict, are also expressly incorporated
10. Change in Capitalization. If there occurs an event as described in Section 8 of the Plan, the
provisions of Section 8 of the Plan shall govern the treatments of the RSUs granted hereunder.
11. Withholding. Upon vesting of the RSUs in accordance with Section 2 above, the Company will be
required to withhold the employment taxes due with respect to such vesting. In addition, it shall be a condition of the obligation of the Company upon delivery of Common Stock to the Employee pursuant
to Section 2 or 3 above that the Employee pay to the Company such amount as may be requested by the Company for the purpose of satisfying any liability for any federal, state or local income or
other taxes required by law to be withheld with respect to such Common Stock. The Company shall be authorized to take such action as may be necessary, in the opinion of the Company's counsel
(including, without limitation, withholding Common Stock otherwise deliverable to the Employee hereunder and/or withholding amounts from any compensation or other amount owing from the Company to the
Employee), to satisfy the obligations for payment of the minimum amount of any such taxes. In addition, if the Company reasonably determines that there would be (x) no adverse accounting
implications to the Company and (y) no adverse tax consequences to the Employee, the Company may permit the Employee to elect to use Common Stock otherwise deliverable to the Employee hereunder
to satisfy any such obligations, subject to such procedures as the Company's accountants may require. The Employee is hereby advised to seek his own tax counsel regarding the taxation of the grant of
RSUs made hereunder.
12. Securities Laws. Upon the delivery of any Common Stock to the Employee, the Company may require the Employee
to make or enter into such written representations, warranties and agreements as the Committee may reasonably request in order to comply with applicable securities laws or with this Agreement. The
delivery of the Common Stock hereunder shall be subject to all applicable laws, rules and regulations and to such approvals of any governmental agencies as may be required.
13. Section 409A of the Code. In the event that it is reasonably determined by the Company that, as a
result of the deferred compensation tax rules under Section 409A of the Code (and any related regulations or other pronouncements thereunder) (the "Deferred Compensation
Tax Rules"), payments or benefits that the Employee is entitled to under the terms of this Agreement may not be made or provided at the time contemplated by the terms hereof or
thereof, as the case may be, without causing the Employee to be subject to tax under the Deferred Compensation Tax Rules, the Company shall, in lieu of providing such payment or benefit when otherwise
due under this Agreement, instead
such payment or benefit on the first day on which such provision would not result in the Employee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if the
Employee is a "specified employee" (within the meaning of the Deferred Compensation Tax Rules), may, in the event the payment or benefit to be provided is due to the Employee's "separation from
service" (within the meaning of the Deferred Compensation Tax Rules) with the Company and its Subsidiaries, shall be the first day following the six-month period beginning on the date of
such separation from service. This Agreement is intended to comply with the Deferred Compensation Tax Rules and will be interpreted accordingly. References under this Agreement to the Employee's
termination of employment shall be deemed to refer to the date upon which the Employee
has experienced a "separation from service" within the meaning of the Deferred Compensation Tax Rules.
14. Notices. Any notice to be given under the terms of this Agreement to the Company shall be addressed to the
Company in care of its Secretary, and any notice to be given to the Employee shall be addressed to him or her at the address appearing in the personnel records of the Company for the Employee. By a
notice given pursuant to this Section 14, either party may hereafter designate a different address for notices to be given to him/her or it. Any notice which is required to be given to the
Employee shall, if the Employee is then deceased, be given to the Employee's personal representative if such representative has previously informed the Company of his or her status and address by
written notice under this Section 14. Any notice shall have been deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage
prepaid) in a post office or branch post office regularly maintained by the United States Postal Service
15. Governing Law. The laws of the State of Delaware (or if the Company reincorporates in another state, the
laws of that state) shall govern the interpretation, validity and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.
16. RSUs Subject to Plan. The RSUs shall be subject to all applicable terms and provisions of the Plan, to the
extent applicable to the Common Stock. In the event of any conflict between this Agreement and the Plan, the terms of the Plan shall control.
(a) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(b) "Change in Control" shall mean "Change in Control" as defined in the Plan. Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur unless such transaction or occurrence constitutes a change in ownership or effective control within the meaning of Section 409A(a)(2)(A)(v) of the Code.
(c) "Permanent Disability" shall mean the Employee becomes physically or mentally incapacitated and is therefore unable for a
period of six (6) consecutive months to perform substantially all of the material elements of the Employee's duties with the Company or any Subsidiary or Affiliate thereof. Any question as to
the existence of the Permanent Disability of the Employee as to which the Employee and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable
to the Employee and the Company. If the Employee and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third
who shall make such determination in writing. The determination of Permanent Disability made in writing to the Company and the Employee shall be final and conclusive for all purposes of this Agreement
(such inability is hereinafter referred to as "Permanent Disability" or being "Permanently Disabled").
18. Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument.
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Appendix A—Major Terms
- "Grant Date" for purposes of this Agreement shall
- "Employee" for purposes of this Agreement shall
"Initial RSU Award Amount" under of this Agreement
- The "Accretion Terms" under this Agreement are that each portion of the Initial RSU Award Amount shall
. All such amounts shall be
rounded up or down to the nearest full Unit.
"Total RSU Award Amount" under this Agreement is the number of Units in the Initial RSU Award Amount
accreted under the Accretion Terms. As a result, the Total RSU Award Amount" under this Agreement, if fully accreted,
- "Vesting Periods" for purposes of this Agreement shall be
the year period after the Grant
- "Vesting Date" for purposes of this Agreement shall
- "Vesting Year" for purposes of this Agreement shall mean the year prior to a Vesting Date.
- "Annual Vesting Amount" for purposes of this Agreement shall mean, for a Vesting Date hereunder, the number
of Units equal to the sum of:
- Initial RSU Award Amount divided by the number of Vesting Years, plus
- The accretion amount applicable to those Units for the applicable Vesting Year.
- "Management Stockholders Agreement" for purposes of this Agreement shall mean the Management Stockholders
Agreement previously entered into between the Employee and the Company.
WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date hereof.
SEALY CORPORATION TIME RESTRICTED STOCK UNIT AWARD AGREEMENT
Appendix A—Major Terms