EXPENSES REASONABLY INCURRED BY ANY OTHER PARTY IN THE COURSE OF COOPERATING IN
SUCH LEGAL ACTION.
10.5
RIGHT TO EQUITABLE RELIEF.
THE PARTIES
ACKNOWLEDGE THAT A BREACH OF ARTICLE 10 OF THIS AGREEMENT MAY RESULT IN
IMMEDIATE AND IRREPARABLE INJURY TO THE NON-BREACHING PARTY FOR WHICH AN AWARD
OF MONEY DAMAGES WOULD BE INADEQUATE.
THE BREACHING PARTY AGREES, THEREFORE,
THAT THE NON-BREACHING PARTY WILL HAVE THE RIGHT TO OBTAIN EQUITABLE RELIEF,
INCLUDING AN INJUNCTION TO SPECIFICALLY ENFORCE THE TERMS OF THIS AGREEMENT, AND
TO OBTAIN ANY OTHER LEGAL OR EQUITABLE REMEDIES THAT MAY BE AVAILABLE TO IT.
11.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT IS
INTENDED TO BIND AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY SFM, THE
COMPANY AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT THAT WITHOUT THE
PRIOR WRITTEN CONSENT OF SFM, THE COMPANY WILL NOT ASSIGN, TRANSFER OR CONVEY
ANY OF ITS RIGHTS, DUTIES OR INTEREST UNDER THIS AGREEMENT, NOR WILL IT DELEGATE
ANY OF THE OBLIGATIONS OR DUTIES REQUIRED TO BE KEPT OR PERFORMED BY IT
HEREUNDER.
4
12.
NOTICES.
ANY NOTICES, REQUESTS, DEMANDS AND
OTHER COMMUNICATIONS REQUIRED OR PERMITTED TO BE GIVEN UNDER THIS AGREEMENT WILL
BE IN WRITING AND, EXCEPT AS OTHERWISE SPECIFIED IN WRITING, WILL BE GIVEN BY
PERSONAL DELIVERY, FACSIMILE TRANSMISSION, EXPRESS COURIER SERVICE OR BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED:
If to the Company:
Select Comfort Corporation
9800 59th Avenue North
Minneapolis, Minnesota 55442
Attention:
Mark Kimball
If to SFM:
Sterling Fund Management, LLC
1033 Skokie Boulevard, Suite 600
Northbrook, Illinois 60062
Attention:
Office of General Counsel
or to such other addresses as either party hereto may from time to time give
notice of (complying as to delivery with the terms of this Section 11) to the
other. Notice by registered or certified mail will be effective three days after
deposit in the United States mail.
Notice by any other permitted means will be
effective upon receipt.
13.
SEVERABILITY.
IF ANY TERM OR PROVISION OF
THIS AGREEMENT OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE WILL, TO
ANY EXTENT, BE INVALID OR UNENFORCEABLE, THE REMAINDER OF THIS AGREEMENT, OR THE
APPLICATION OF SUCH TERM OR PROVISION TO PERSONS OR CIRCUMSTANCES OTHER THAN
THOSE WHICH ARE INVALID OR UNENFORCEABLE, WILL NOT BE AFFECTED THEREBY, AND EACH
TERM AND PROVISION OF THIS AGREEMENT WILL BE VALID AND BE ENFORCED TO THE
FULLEST EXTENT PERMITTED BY LAW.
14.
NO WAIVER.
THE FAILURE OF THE COMPANY OR SFM
TO SEEK REDRESS FOR ANY VIOLATION OF, OR TO INSIST UPON THE STRICT PERFORMANCE
OF, ANY TERM OR CONDITION OF THIS AGREEMENT WILL NOT PREVENT A SUBSEQUENT ACT BY
THE COMPANY OR SFM, WHICH WOULD HAVE ORIGINALLY CONSTITUTED A VIOLATION OF THIS
AGREEMENT BY THE COMPANY OR SFM, FROM HAVING ALL THE FORCE AND EFFECT OF ANY
ORIGINAL VIOLATION.
THE FAILURE BY THE COMPANY OR SFM TO INSIST UPON THE STRICT
PERFORMANCE OF ANY ONE OF THE TERMS OR CONDITIONS OF THE AGREEMENT OR TO
EXERCISE ANY RIGHT, REMEDY OR