Nominating
& Governance Committee Charter
FOAMEX INTERNATIONAL
INC.
NOMINATING & GOVERNANCE COMMITTEE CHARTER
I. Purpose
The primary objectives of
the Nominating & Governance Committee (the “Committee”)
of the Board of Directors (the “Board”) of Foamex
International Inc. (the “Company”) is to assist the
Board by (a) identifying individuals qualified to become Board
members, reviewing the qualifications of individuals proposed
for nomination as directors, and recommending director nominees
for the Board to propose at the next annual meeting of stockholders
of the Company; and (b) developing and recommending to the Board
corporate governance guidelines (including Board member qualification
standards) and a code of ethics applicable to the Company.
II. Organization
The Committee shall consist
of three or more directors, each of whom shall satisfy the applicable
independence requirements of The Nasdaq Stock Market, Inc. (“Nasdaq”)
and any other applicable legal or regulatory requirements, including
requirements under the federal securities laws.
The members of the Committee shall be appointed and may be removed
by the Board.
The Committee may form and delegate authority to subcommittees
when appropriate.
III. Meetings
The Committee shall meet
at least four times per year on a quarterly basis, and more frequently
as necessary to carry out its responsibilities. Any member of
the Committee may request that the Chairman of the Committee (the
“Chairman”) call a meeting of the Committee.
IV. Authority and Responsibilities
To fulfill its responsibilities, the Committee shall:
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Perform the following
functions: (i) identify individuals qualified to become directors;
(ii) review qualifications of individuals proposed for nomination
as directors by other directors or any stockholders in accordance
with the Company’s by-laws, and report its view on such
recommendations to the Board; and (iii) recommend for consideration
by the full Board of Directors director nominees for the next
annual meeting of stockholders of the Company. These responsibilities
include working with the full Board to establish and review
from time to time criteria for Board membership, reviewing candidates’
qualifications and any potential conflicts with the Company’s
interests, assessing the contributions of current directors
in considering their re-nomination and making recommendations
to the full Board with respect to these matters. In reviewing
an individual’s qualifications for nomination as a director,
in addition to any actions the Committee shall determine to
undertake, the Committee shall:
- conduct an appropriate review of the individual’s
background;
- review the individual’s past professional
experiences and assess the extent to which such experiences
shall be useful to the Board and the Company, including
considering such individual’s skills, knowledge,
perspective, broad business judgment and leadership,
relevant specific industry or regulatory affairs knowledge,
business creativity and vision, experience, age and
diversity, all in the context of an assessment of
the perceived needs of the Board at that time;
- introduce the individual to the Board and to the
Company’s senior management and solicit their
comments regarding such individual’s qualifications
for nomination as a director;
- provide the individual background material, including
the Company’s corporate governance guidelines
and code of ethics; and
- assess the individual’s independence in accordance
with the criteria developed by the Committee and with
the requirements of Nasdaq and any other applicable
legal or regulatory requirements, including requirements
under the federal securities laws.
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The selection and nomination of director nominees need not be
subject to the process set forth herein (i) if such director
is a director appointed by the holders of preferred stock of
the Company in accordance with the Company’s by-laws and
certificate of incorporation or (ii) in the event that the Company
is legally required by contract or otherwise to provide third
parties with the ability to designate directors.
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Annually review, and
recommend any appropriate changes to, the composition of Board
committees and make recommendations to the Board regarding (i)
the membership of directors on committees of the Board, other
than the Committee, and (ii) the nomination of additional directors
to fill committee vacancies as needed. In the event that a director
vacancy arises, the Committee shall seek and identify a qualified
director nominee to be recommended to the Board for appointment
by the Board to serve the remainder of the term of the director
position that is vacant until a successor is elected and qualified.
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Make recommendations
to the Board with respect to potential successors to the Chief
Executive Officer for purposes of both an emergency succession
plan in the event of an unexpected loss of the Chief Executive
Officer and an orderly or planned succession of the Chief Executive
Officer.
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Establish criteria for
determining director independence in accordance with the requirements
of Nasdaq, applicable laws and regulations, review the qualifications
and independence of the members of the Board and its various
committees on a periodic (at least annual) basis and make recommendations
to the Board concerning any proposed changes in the composition,
size or membership of the Board, or any of its committees.
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Conduct an evaluation
of, and receive comments from all directors as to, the Board’s
and management’s performance and report annually to the
Board with an assessment of the Board’s and management’s
performance.
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Recommend to the Board
such changes to the Board’s committee structure and committee
functions, as the Committee deems advisable.
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Prepare and recommend
to the Board a set of corporate governance guidelines and a
code of ethics applicable to the Company, and review and reassess
the adequacy of such guidelines and code annually, including
recommending to the Board any changes deemed appropriate by
the Committee.
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Review and assess the
quality and clarity of the corporate governance information
provided to the Board and its committees by management and direct
management as the Committee deems appropriate with respect to
such materials.
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Confirm that each standing
committee of the Board has a charter in effect, that each charter
complies with all applicable laws and regulations, that such
charter is reviewed at least annually by its committee, and
that each standing committee of the Board operates in accordance
with its charter.
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Review and reassess the
adequacy of this Charter annually and recommend to the Board
any changes deemed appropriate by the Committee.
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Establish and maintain
an orientation program for new directors and a continuing education
program for continuing directors.
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Conduct, and present to
the Board, an annual evaluation of the Committee’s performance.
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Delegate its authority
to its members as the Committee deems appropriate; provided,
that any delegate shall report any actions taken by him or her
to the whole Committee at its next regularly scheduled meeting.
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Appoint one of its members
as the Chairman. The Chairman shall be responsible for leadership
of the Committee, including preparing the agenda, presiding
over the meetings, making Committee assignments and reporting
for the Committee to the Board at its next regularly scheduled
meeting following the meeting of the Committee.
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Report regularly to the
Board at any time and with respect to any matters within the
purview of the Committee’s authority and responsibility
set forth in this Charter.
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Perform any other activities
consistent with this Charter, the Company’s by-laws and
governing law as the Committee or the Board deems appropriate.
V. Resources
The Committee shall have the sole authority to retain and terminate
a search firm to be used to identify director candidates and the
authority to retain other professionals to assist it with any background
checks. The Committee shall also have authority to obtain advice
and assistance from internal or outside legal, accounting or other
advisors it determines necessary to carry out its duties.
The Committee shall have the sole authority to determine the extent
of funding necessary for payment of compensation to any search firm
and the authority to determine the extent of funding necessary for
payment of compensation to any other professionals or advisors retained
to advise the Committee.
* * * * * *
This Charter was adopted by the Board of Directors of the Company
on September 25, 2003.
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