Exhibit 10.4
EXHIBIT G
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (this "Agreement") is made and entered into
as of
, 2009, by and between Select Comfort Corporation,
a Minnesota corporation (the "Company"), and Sterling Fund Management, LLC, a
Delaware limited liability company ("SFM").
WHEREAS, on the terms and subject to the conditions contained in this Agreement,
the Company desires to receive certain management, consulting and financial
services from SFM, and SFM desires to perform such services for the Company.
NOW, THEREFORE, in consideration of the foregoing premises and the respective
mutual agreements, covenants, representations and warranties contained in this
Agreement, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
APPOINTMENT OF SFM.
ON THE TERMS AND
CONDITIONS PROVIDED IN THIS AGREEMENT, THE COMPANY APPOINTS SFM, AND SFM ACCEPTS
APPOINTMENT, AS A MANAGEMENT CONSULTANT AND FINANCIAL ADVISOR TO THE COMPANY AND
ITS SUBSIDIARIES, INCLUDING THE BUSINESS OF ANY CORPORATIONS HEREAFTER FORMED OR
ACQUIRED BY THE COMPANY OR ANY SUCH SUBSIDIARY.
2.
SERVICES OF SFM.
SFM WILL RENDER
MANAGEMENT, CONSULTING AND FINANCIAL SERVICES TO THE COMPANY AND ITS
SUBSIDIARIES, WHICH SERVICES WILL INCLUDE ADVICE AND ASSISTANCE CONCERNING ANY
AND ALL ASPECTS OF THE OPERATIONS, PLANNING AND FINANCING OF THE COMPANY AND ITS
SUBSIDIARIES (THE "SERVICES"), AS NEEDED FROM TIME TO TIME, INCLUDING ADVISING
THE COMPANY AND ITS SUBSIDIARIES IN THEIR RELATIONSHIPS WITH BANKS AND OTHER
FINANCIAL INSTITUTIONS AND WITH ACCOUNTANTS, ATTORNEYS, FINANCIAL ADVISORS AND
OTHER PROFESSIONALS.
SFM WILL CAUSE ITS EMPLOYEES AND AGENTS TO PROVIDE THE
COMPANY AND ITS SUBSIDIARIES WITH THE BENEFIT OF THEIR SPECIAL KNOWLEDGE, SKILL
AND BUSINESS EXPERTISE TO THE EXTENT RELEVANT TO THE BUSINESS AND AFFAIRS OF THE
COMPANY AND ITS SUBSIDIARIES.
IN ADDITION, SFM WILL RENDER ADVICE AND
ASSISTANCE IN CONNECTION WITH ANY ACQUISITIONS, DISPOSITIONS OR FINANCING
TRANSACTIONS UNDERTAKEN BY THE COMPANY AND ITS SUBSIDIARIES.
3.
REIMBURSEMENT OF EXPENSES.
THE COMPANY
WILL REIMBURSE SFM FOR ALL REASONABLE AND DOCUMENTED OUT-OF-POCKET EXPENSES
INCURRED BY SFM IN THE PERFORMANCE OF THE SERVICES; PROVIDED THAT SFM OBTAINS
PRIOR WRITTEN APPROVAL OF THE COMPANY FOR ANY SUCH EXPENSES. SFM WILL NOT BE
OBLIGATED TO MAKE ANY ADVANCE TO, OR FOR THE ACCOUNT OF, THE COMPANY OR TO PAY
ANY SUMS, EXCEPT OUT OF FUNDS HELD IN ACCOUNTS MAINTAINED BY THE COMPANY, NOR
WILL SFM BE OBLIGATED TO INCUR ANY LIABILITY OR OBLIGATION FOR THE ACCOUNT OF
THE COMPANY WITHOUT ASSURANCE THAT THE NECESSARY FUNDS FOR THE DISCHARGE OF THE
LIABILITY OR OBLIGATION WILL BE PROVIDED.
4.
OTHER ACTIVITIES OF SFM; INVESTMENT
OPPORTUNITIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT NEITHER SFM NOR ANY OF
ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES OR ASSOCIATES WILL DEVOTE ITS,
HIS OR HER FULL TIME AND BUSINESS EFFORTS TO THE DUTIES OF SFM SPECIFIED IN THIS
AGREEMENT, BUT ONLY SO MUCH OF SUCH TIME AND EFFORTS AS SFM REASONABLY DEEMS
NECESSARY OR APPROPRIATE.
THE COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT SFM
AND ITS AFFILIATES AND ASSOCIATES ARE OR MAY BE ENGAGED IN THE BUSINESS OF
INVESTING IN, ACQUIRING AND/OR MANAGING