form10_1.htm


    
 

    GENERAL
      RELEASE AND SEPARATION AGREEMENT

    


    


    Simmons
      Bedding Company, a corporation incorporated under the laws of the State of
      Delaware (“Company”), and Simmons Holdco, Inc., a corporation
      incorporated under the laws of the State of Delaware (“Holdings”)
      (collectively Company and Holdings are referred to herein as “Simmons”), and
      Gary S. Matthews (“Executive”) hereby enter into this General Release and
      Separation Agreement (“Separation Agreement”), contracting and agreeing
      as follows:

    


    1.  Termination
      Date and Employment Agreement.  The parties
      agree that Executive's last day of employment with Company is May 25, 2007
      (the “Termination Date”).  Executive acknowledges and
      agrees that except as specifically set forth below, the Employment Agreement
      dated as of November 10, 2006 among Simmons Company, Company and
      Executive (the “Employment Agreement”) is
      terminated.  Executive further agrees that effective as of the
      Termination Date, he hereby resigns from all officer and director positions
      with
      Simmons and any of its subsidiaries and affiliates and agrees to sign any
      letters or other documents on or after such date effecting such
      resignations.

    


    2.  Consideration
      Period.  Executive acknowledges that Executive was given this
      Separation Agreement to consider on May 9, 2007 and that Executive has
      twenty-one (21) days to consider whether to sign this
      Separation Agreement.  Executive is hereby advised to consult a lawyer
      before signing this Separation Agreement.

    


    3.  Effective
      Date.  Executive may accept this Separation Agreement only by
      signing, initialing and dating this Separation Agreement in the spaces provided
      and delivering the Separation Agreement to Simmons Bedding Company,
      Attention:  Kristen K. McGuffey, Executive Vice President and General
      Counsel, One Concourse Parkway, Suite 800, Atlanta, Georgia 30328, no later
      than Company’s normal close of business on the later of (a) the
      twenty-second (22nd) day following
      Executive’s receipt of this Separation Agreement or (b) if the
      twenty-second (22nd) day following
      receipt is a Saturday, Sunday or legal holiday in the State of Georgia, the
      next
      day that is not a Saturday, Sunday or legal holiday.  Time is of the
      essence as it pertains to this Section 3.The “Effective Date” of this
      Separation Agreement shall be seven (7) days after the date on which
      Executive signs and delivers the Separation Agreement pursuant to this Section,
      so long as Executive has not revoked the Separation Agreement pursuant to
      Section 4 below.

    


    4.  Revocation.  Executive
      may revoke this Separation Agreement at any time within seven (7) days after
      signing and delivering it to Simmons.  If Executive elects to revoke,
      Executive must give notice of his decision in writing delivered to Simmons
      Bedding Company, Attention: Kristen K. McGuffey, Executive Vice President and
      General Counsel, One Concourse Parkway, Suite 800, Atlanta, Georgia
      30328.  The notice shall be sent in a manner so that it will be
      received by Ms. McGuffey within seven (7) days of the date of Executive’s
      execution of this Separation Agreement.

    


    5.  Separation
      Benefits.  Provided that Executive satisfies the conditions
      of this Separation Agreement and does not revoke this Separation Agreement,
      Company will do the following:

    


    (a)  Pay
      to
      Executive his unpaid salary through the Termination Date.  Such amount
      will be paid at the next regular pay period after the Termination
      Date.

    


    (b)  Pay
      to
      Executive the Annual Bonus due for fiscal year 2007, if any, in accordance
      with
      Sections 3.2 and 7.4(a) of his Employment Agreement.  Such amount
      will be paid to Executive as soon as practicable following the last day of
      the
      month in which the Termination Date occurs.

    


    (c)  Pay
      to
      Executive the gross amount of $862,500, which equals eighteen (18) months of
      Executive’s current salary of $575,000 per year.  This amount, less
      legal deductions, will be paid in accordance with Executive’s current pay
      schedule for a period from May 25, 2007 through November 24, 2008 (the
“Severance Pay Period”) provided that the first payment shall not be made
      until after the expiration of the revocation period, and which first payment
      will include any missed payments between the first payment due date and the
      expiration of the revocation period.

    


    (d)  (i)           Executive
      and Executive’s Dependents (as defined below) may continue to participate in the
      Company’s medical, dental and vision plans at the same level of participation
      that was in effect immediately prior to the Termination
      Date through the earlier of (i) November 24, 2008, or (ii) the date on
      which the Executive commences other employment in connection with which the
      Executive is eligible to receive medical, dental and vision benefits
      substantially comparable to those made available by the Company (including
      self
      employment or engaging in an enterprise as a sole proprietor, member or
      partner).  Executive shall continue to pay for such coverage at the
      same rate or rates that apply from time to time to active employees for
      comparable coverage.  Notwithstanding the foregoing, if the benefit
      plan for which Executive is currently enrolled is no longer offered by Simmons,
      then Executive through November 24, 2008 will be eligible to participate in
      any
      plan offered to then-current Simmons’ associates.  Executive must pay
      Executive’s portion by deductions from Executive’s severance
      payments.  The 18 month period during which benefits under the
      Consolidated Omnibus Budget Reconciliation Act (aka COBRA) are available to
      Executive and his Dependants shall begin on the Termination Date and run
      concurrently with the benefits available under this
      Section 5(d)(i).

    


    (ii)           For
      2008, the new medical, dental and vision rates will be communicated to the
      Executive before December 31, 2007.  Executive is required to complete
      all necessary forms required during the 2008 open enrollment
      period.  Further, if Executive discontinues his coverage under the
      Company’s medical, dental or vision plans at any time, he will no longer be
      entitled to any of the benefits described in this Section 5(d) with respect
      to
      such plan after such date.

     

    (iii)                      As
      used herein, a “Dependent” is a dependent of Executive enrolled and qualified in
      Simmons’ medical, dental and/or vision plans immediately prior to the
      Termination Date and will only continue to be a “Dependent” hereunder for as
      long as he or he continues to be qualified as outlined in the applicable health
      plan documents.  Simmons reserves the right from time to time to
      require proof from Executive that Executive’s Dependents are still considered
      qualified under the applicable health plan documents.

    


    (iv)           Nothing
      contained herein shall give Executive any rights to any other Simmons sponsored
      benefits, including without limitation, long term disability, short term
      disability, and retirement contributions, except as permitted under those plans
      for retired associates.

    


    (e)  Pay
      all
      verified and approved expense reports submitted by Executive to Company within
      two (2) weeks of the Termination Date in accordance with Company’s current
      policies, practices and procedures.

    


    (f)  Executive
      agrees that if Executive subsequently engages in activities prohibited by
      Section 10 below, then the Company may thereafter immediately terminate and
      shall not be required to continue on behalf of the Executive or
      his Dependents any compensation provided for in this Section 5 other than
      those benefits that the Company may be required to maintain for the Executive
      under applicable law.  Except as expressly provided in this Section
      5(f), the Company’s obligation to pay all compensation to Executive provided for
      in this Section 5 shall be absolute, and shall not be eliminated or otherwise
      diminished in any manner by reason of Executive’s hereafter commencing other
      employment or self-employment, or otherwise.

    


    6.  Repurchase
      of Shares.

    


    (a)  Class
      A Shares. Pursuant to Section 3.5(b)(i) of the Securityholders
      Agreement dated as of December 19, 2003 among Executive, Holdings (as
      successor to Simmons Company) and the other parties thereto (as amended to
      date
      the “SH Agreement”), Holdings exercises its right to repurchase the
      4,195.33 Class A shares that Executive currently owns.  The Call
      Notice (as that term is defined in the SH Agreement) shall be deemed to have
      been given as of the Effective Date of this Separation Agreement.  The
      Call Closing (as that term is defined in the SH Agreement) will take place
      at
      One Concourse Parkway, Suite 800, Atlanta, Georgia 30328 on or before the 30th
      day after the Effective Date of this Separation Agreement and such shares will
      be repurchased at the then current Fair Market Value.

    


    (b)  Class
      B Shares. Pursuant to Section 2(b) and 3(a) of the Restricted
      Stock Agreement dated as of December 1, 2006 by and between Executive and
      Holdings, as successor to Simmons Company (the “RSA”), the vesting of
      Executive’s Restricted Class B stock has terminated, and Holdings may now, or at
      such later date, as the case may be, exercise the following rights:

    


    (i)           For
      the portion, if any, of Executive’s 3,333 Class B shares that may become
      Vested Shares pursuant to Section 2(b) of the RSA if Holdings meets the
      performance requirements for fiscal year 2007 as set forth in
      Section 2(a)(i) of the RSA (as such targets were adjusted in January 2007
      in accordance with the terms of the RSA, which new targets are set forth on
      Exhibit A hereto), Holdings may, in its sole discretion, exercise
      its right to repurchase any such vested shares on a date that is no earlier
      than
      180 days after such shares become vested at the then current FMV.  For
      the portion, if any, of these shares that do not vest pursuant to the
      performance requirements for 2007, then Holdings will repurchase these unvested
      shares at Executive’s original purchase price of one penny per share within
      thirty (30) days of the Measurement Date in 2008.

    


    (ii)           Holdings
      hereby exercises its right to repurchase 36,667 of the Executive’s unvested
      Class B shares at Executive’s original purchase price of one penny per share, or
      $366.67, which amount will be paid within thirty (30) days of the Effective
      Date
      of this Separation Agreement.  These shares shall be deemed
      repurchased upon payment by Simmons to Executive.

    


    (c)  Stock
      Options.  Pursuant to Section 4 of the Stock Option Agreement
      dated as of December 1, 2006 between Holdings (as successor to Simmons Company)
      and the Executive (the “Option Agreement”), no shares have become Vested
      Shares (as defined in the Option Agreement) and the Option shall terminate
      as of
      the Termination Date.

    


    (d)  Cash
      Deferral Condition.  Executive further agrees that the obligations
      of Holdings to make payments pursuant to Sections 6(a) and 6(b) above are
      subject to there being no Cash Deferral Condition existing (as such term is
      defined in Section 3(d) of the RSA and Section 3.5(a)(iv) of the SH
      Agreement).

    


    7.  Release.

    


    (a)  Subject
      to Executive's right to revoke this Separation Agreement as stated above, by
      signing this Separation Agreement, Executive gives up and releases Simmons,
      each
      subsidiary and affiliate of Company or Holdings, or both; and their respective
      employee welfare benefit plans, employee retirement benefit plans, successors
      and assigns (including, in their representative capacities, all present and
      former shareholders, directors, officers, partners, fiduciaries, agents,
      representatives and employees of those companies and other entities)
      (collectively the “Released Parties”) from and promises never to sue or lodge
      any charge or complaint whether as a named plaintiff, class member, or otherwise
      against the Released Parties with respect to any and all rights and claims
      that
      Executive may have against the Released Parties, including without limitation
      any and all rights and claims to or for attorneys' fees, whether or not
      Executive presently is aware of such rights or claims or suspects them to
      exist.  These rights and claims include, but are not limited to, any
      and all rights and claims which Executive may have under, or arising out of,
      Title VII of the Civil Rights Act of 1964, as amended; the Americans with
      Disabilities Act, as amended; the Age Discrimination in Employment Act of 1967,
      as amended; and any other federal, state or local statute, ordinance, executive
      order, or common law.  Executive specifically releases any and all
      claims of/for discrimination on the basis of age, gender, race, national origin,
      religion and/or retaliation.  These rights and claims also include,
      but are not limited to, any and all rights and claims that Executive may have
      under any agreement or contract (other than this Separation
      Agreement).  This release includes any and all claims that might exist
      at the time Executive executes this Separation Agreement, whether known or
      unknown to Executive.  These rights and claims do not include any
      rights or claims which arise after the date on which Executive signs and
      delivers this Separation Agreement to Company or any vested rights Executive
      has
      (if any) under any retirement benefit plan sponsored by Company, and do not
      include any rights or claims (including, without limitation, any claims for
      indemnification) existing under this Separation Agreement.

     

    (b)  The
      Company and Holdings give up and release Executive from and promise never to
      sue
      or lodge any charge or complaint whether as a named plaintiff, class member,
      or
      otherwise against the Executive with respect to any and all rights and claims
      that the Company or Holdings may have against the Executive, including without
      limitation any and all rights and claims to or for attorneys' fees, whether
      or
      not the Company or Holdings presently is aware of such rights or claims or
      suspects them to exist.  These rights and claims also include, but are
      not limited to, any and all rights and claims that the Company or Holdings
      may
      have under any agreement or contract (other than this Separation Agreement,
      the
      SH Agreement, RSA, and the Employment Agreement, but in each case only with
      respect to any ongoing obligations thereunder).  This release includes
      any and all claims that might exist at the time the Company and Holdings execute
      this Separation Agreement, whether known or unknown to the Company or
      Holdings.  These rights and claims do not include any rights or claims
      which arise after the date on which the Company and Holdings sign and deliver
      this Separation Agreement, and do not include any rights or claims existing
      under this Separation Agreement, the SH Agreement, RSA, and the Employment
      Agreement, but in each case only with respect to any ongoing obligations
      thereunder.

     

    8.  False
      Claims Representations, Cooperation and Promises:  Executive
      has disclosed to Company any and all information Executive has concerning any
      conduct involving Simmons or any affiliate that Executive has any reason to
      believe may be unlawful.  Executive promises to cooperate fully with
      Simmons in any investigation Simmons or any affiliate undertakes into matters
      occurring during Executive’s employment with Simmons or any
      affiliate.  Executive agrees that, as and when requested by Simmons,
      Executive will fully cooperate with Simmons or any affiliate in effecting a
      smooth transition of Executive’s responsibilities to
      others.  Executive will promptly and fully cooperate with Simmons or
      any affiliate and its representatives in any dispute, litigation, arbitration,
      administrative or similar proceeding with respect to claims arising from events
      occurring or alleged to have occurred during his employment with
      Simmons.  If Executive is contacted as a potential witness to any
      claim or in any litigation, Executive will notify Simmons of any such contact
      or
      request within two (2) days after learning of it and will permit Simmons to
      take
      all steps it deems to be appropriate, if any, to prevent Executive’s
      involvement, or to be present during any such discussions.  This
      section does not prohibit Executive’s participation as a witness to the extent
      otherwise legally required, but does require that Executive provide Simmons
      with
      notice and the opportunity to object and/or participate.  Before
      Executive discloses any Simmons’ information or engages in any other activity
      that could possibly violate the promises Executive has made herein, Executive
      promises that Executive will discuss Executive’s proposed actions with the
      Executive Vice President and General Counsel at (770) 392-2502, who will advise
      Executive in writing whether the proposed actions would violate these
      promises.

    


    9.  No
      Admission. This Separation Agreement does not constitute an
      admission by the Released Parties of any liability to Executive, and Executive
      understands and agrees that the Released Parties deny any liability to
      Executive.

    


    10.  Obligations
      and Restricted Activities.  In consideration of the benefits
      as set forth herein, and other good and valuable consideration, the adequacy
      of
      which Executive acknowledges, Executive, intending to be legally bound, agrees
      to continue to be bound by the obligations and restrictions as set forth in
      Section 5 of the Employment Agreement and terms shall remain binding and
      enforceable during the periods set forth therein.  Defined terms as
      used in Section 5 of the Employment Agreement shall have the specific meanings
      as defined in Section 11 of the Employment Agreement.  Notwithstanding
      the foregoing, when interpreting the noncompete provision in Section 5.4 of
      the
      Employment Agreement:

    


    (a)
      the term “Business of the Company”
(as defined in Section 11.6 of the Employment Agreement) as it is used in the
      definition of “Competitive Business” (as defined in Section 11.13 of the
      Employment Agreement) will be revised as follows:

    


    ““Business
      of the Company” means the highly competitive business of developing
      manufacturing, marketing, distributing, and/or selling mattresses, foundations,
      changing pads and covers”; and

    


    (b)
      the term “Competitive Business” as
      defined in Section 11.13 of the Employment Agreement will be revised as
      follows:

    


    ““Competitive
      Business” means (i) any firm, partnership, joint venture, corporation
      and/or any other entity and/or person, including but not limited to Sealy
      Corporation, Serta International, Spring Air Company, Select Comfort
      Corporation, Tempur-Pedic International, Inc., King Koil Licensing Company,
      Inc., and/or any licensee of such entity, that develops, manufactures, markets,
      distributes, and/or sells any of the sleep products described in Section
      11.6., or (ii) any subsidiary or affiliate of such entity or person
      described in clause (i) above which is either (a) engaged in a business that
      directly supports the entity or person described in clause (i) above or (b)
      is
      in the business of developing, manufacturing, marketing, distributing and/or
      selling bedding components.  Notwithstanding the foregoing, a
“Competitive Business” shall not include any firm, partnership, joint venture,
      corporation and/or any other entity and/or person that is primarily in the
      retail business of selling sleep products described in Section 11.6 (and
      is not in the business of developing or manufacturing any such sleep products)
      so long as it is not a subsidiary or affiliate of any entity or person described
      in clause (i) above.”

    


    11.  General

    


    (a)  Executive
      shall be entitled to indemnification to the fullest extent provided by Delaware
      law and Simmons’ organizational documents as now in effect against any expense
      (including, without limitation, attorneys’ fees), fine, penalty, liability or
      damages incurred by Executive in connection with any action, suit or proceeding,
      whether civil, criminal, administrative or investigative, in which he currently
      is or hereafter becomes involved as a result of his employment with Simmons
      and
      performance of duties pursuant to his Employment Agreement.  Simmons
      hereby represents and warrants that all corporate action has been taken, and
      all
      approvals and consents have been obtained, as may be necessary for Simmons
      to
      extend full indemnification to Executive after the Termination Date including,
      without limitation, continuing to fund Executive’s defense of any currently
      ongoing action, suit or proceeding.

     

    (b)  This
      Separation Agreement contains the entire agreement of Simmons with Executive
      and
      replaces all prior and contemporaneous agreements, communications and
      understandings, whether written or oral, with respect to Executive’s employment
      with Company and its termination and all related matters, including the
      Employment Agreement, excluding only Executive’s rights and obligations, if any,
      that survive the Employment Agreement as specifically set forth
      herein.  The parties further agree that no amendment or modification
      of this Separation Agreement shall be valid or binding upon any of them unless
      made in writing and signed by all parties hereto.  Except to the extent
      expressly set forth herein, the Separation Agreement does not affect ongoing
      rights and obligations of the parties under the SH Agreement, RSA and any
      related agreements concerning Class A or Class B stock held by Executive after
      the Effective Date.

     

    (c)  This
      Separation Agreement shall be binding upon and inure to the benefits of the
      parties hereto and their respective heirs, representatives, successors,
      transferees and assigns forever.  This Separation Agreement shall not
      be assignable by Executive but shall be freely assignable by Simmons, provided
      that any assignment by Simmons shall expressly provide that (i) the assignee
      affirmatively assumes all the obligations, duties and responsibilities imposed
      upon Simmons pursuant to this Separation Agreement and (ii) Simmons is not
      in
      any manner relieved of any such obligations, duties or responsibilities
      hereunder.

     

    (d)  Simmons
      and Executive intend for every provision of the Separation Agreement to be
      fully
      enforceable.  If a court with jurisdiction of this Separation
      Agreement determines that all or part of any provision of this Separation
      Agreement is unenforceable for any reason, Simmons and Executive intend for
      each
      remaining provision and part to be fully enforceable as though the unenforceable
      provision or part had not been included in this Separation
      Agreement.

     

    (e)  This
      Separation Agreement shall be governed by and construed in accordance with
      the
      laws of the State of Georgia, without regard to the conflict of laws principles
      thereof, except with respect to (i) Section 10 of this Separation Agreement,
      which shall expressly be governed by and construed in accordance with the choice
      of law provisions of the Employment Agreement, and (ii) Section 11(a) of this
      Separation Agreement, which shall be construed in accordance with Delaware
      law
      as provided therein.

     

    (f)  This
      Separation Agreement may be executed in any number of counterparts, each of
      which shall constitute an original and all of which, when taken together, shall
      constitute one agreement.

     

    12.  Executive’s
      Full Review.  Executive acknowledges that Executive has read
      this entire Separation Agreement, that Executive fully understands its meaning
      and effect, that Executive’s counsel has answered any questions Executive
      may have, that no promises or representations have been made to Executive by
      any
      person to induce Executive to enter into this agreement other than the express
      terms set forth herein, and that Executive has voluntarily signed this
      Separation Agreement.

    


    [Signatures
      on the Following Page]

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


     

        IN
      WITNESS
      WHEREOF, Executive and a duly authorized representative of Company and Holdings
      have signed this Separation Agreement to be effective as provided
      herein.

    


    Simmons
      Bedding Company

    


    By:  /s/ 
      Kristen K.
      McGuffey                                                                                     Date:  6/4/2007

    Name: 
      Kristen K. McGuffey

    Title: 
Executive
      Vice President,
      General Counsel and Secretary

    


    Simmons
      Holdco, Inc.

     

    By:  /s/ 
      Kristen K.
      McGuffey                                                           
       Date:  6/4/2007

    Name: 
      Kristen K. McGuffey

    Title: 
Executive
      Vice President,
      General Counsel and Secretary

    


    Executive

    


    /s/Gary
      S. Matthews                               
Date: 
      5/31/2007 

    Gary
      S.
      Matthews


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Exhibit
      A

    


    Current
      RSA Targets

    


    
      	
              Month

            	
              2007
                Monthly

              Target
                EBITDA

              (dollars
                in millions)

            	
              2007
                Year to Date

              Target
                EBITDA

              (dollars
                in millions)

            
	
              January

            	
              $18.9

            	
              $18.9

            
	
              February

            	
              $13.4

            	
              $32.3

            
	
              March

            	
              $13.4

            	
              $45.7

            
	
              April

            	
              $15.1

            	
              $60.8

            
	
              May

            	
              $12.7

            	
              $73.5

            
	
              June

            	
              $17.4

            	
              $90.9

            
	
              July

            	
              $21.0

            	
              $111.9

            
	
              August

            	
              $17.6

            	
              $129.5

            
	
              September

            	
              $16.7

            	
              $146.2

            
	
              October

            	
              $18.9

            	
              $165.1

            
	
              November

            	
              $12.7

            	
              $177.9

            
	
              December

            	
              $12.1

            	
              $190.0