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.
5
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.
17.
DEFINITIONS.
(A)
"APPLICABLE FISCAL YEARS" SHALL HAVE THE MEANING SET FORTH ON
APPENDIX A OF THIS AGREEMENT.
(B)
"CODE" SHALL MEAN THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
(C)
"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.
(D)
"EBITDA" SHALL MEAN "ADJUSTED EBITDA" AS DEFINED IN THE SECOND
AMENDMENT DATED AS OF NOVEMBER 14, 2008 AMONG SEALY MATTRESS COMPANY, AN OHIO
CORPORATION (THE "BORROWER"), SEALY CANADA LTD./LTEE, A COMPANY ORGANIZED UNDER
THE LAWS OF CANADA (THE "CANADIAN BORROWER"), SEALY MATTRESS CORPORATION, A
DELAWARE CORPORATION ("HOLDINGS"), SEALY CORPORATION, A DELAWARE CORPORATION
("PARENT"), THE SUBSIDIARIES OF BORROWER LISTED ON THE SIGNATURE PAGES THERETO,
AS GUARANTORS, AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT (IN SUCH
CAPACITY, "ADMINISTRATIVE AGENT") ON BEHALF OF THE REQUIRED LENDERS TO THE THIRD
AMENDED