will control the performance of the Services and will furnish all tools and materials necessary to the performance of the Services. Notwithstanding the foregoing, the Company will reimburse Executive for certain reasonable expenses in accordance with the Company’s reimbursement policies applicable to independent contractors. Executive acknowledges that she will remain subject to the Company’s Insider Trading Policy in accordance with its terms, including during the Consulting Period. Executive further agrees: (i) that all right, title, and interest in and to any notes, records, designs, inventions, improvements, developments, discoveries, copyrightable material, ideas, and/or trade secrets conceived, discovered, authored, invented, developed, or reduced to practice by Executive, solely or in collaboration with others, arising out of, or in connection with, performing the Services and/or in the scope of her prior employment and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (collectively, “Inventions”) are the sole property of the Company; (ii) to promptly disclose to Company in writing any Inventions; (iii) and that Executive hereby irrevocably assigns and agrees to assign (or cause to be assigned) all Inventions to Company. During the Consulting Period and thereafter, Executive agrees that the terms relating to the protection of Confidential Information as set forth in Executive’s Employee Inventions, Confidentiality and Non-Compete Agreement shall continue to apply.
3. Release of Claims. Executive hereby agrees to execute the release of claims in the form attached to this Agreement as Exhibit A (the “Release”) no earlier than the close of business on the Employment Separation Date (or such other date agreed to by the Company and Executive). Executive’s eligibility to receive the consideration set forth in Sections 1(d), 1(e), 1(f) and 2 of this Agreement is subject to, and contingent upon, Executive executing the Release no earlier than the close of business on the Employment Separation Date (or such other date agreed to by the Company and Executive), and not rescinding the Release.
4. No Good Reason. Executive acknowledges and agrees that Executive’s termination of employment, including her transition from President and Chief Executive Officer to strategic consultant and, if applicable, from President and Chief Executive Officer to a non-executive employment position from the CEO Transition Date to the Employment Separation Date, does not constitute “Good Reason” as defined in the Company’s Executive Severance Pay Plan or any other agreement or policy governing Executive’s employment relationship with the Company. Notwithstanding the foregoing, in the event of a Change in Control (as defined in the Company’s Executive Severance Pay Plan) that occurs prior to the Employment Separation Date, Executive shall remain eligible for the severance compensation and benefits as set forth in the Company’s Executive Severance Pay Plan as a “Tier I” executive.
5. Governing Law; Venue. All issues and questions concerning the application, construction, validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, without giving effect to any principles of conflicts of law, whether of the State of Minnesota or any other jurisdiction. Each of the Parties agrees that any legal action or proceeding with respect to this Agreement will be brought exclusively in the state court of Minnesota located in Hennepin County, or the federal courts of the United States of America for the District of Minnesota, unless the Parties to any such action or dispute mutually agree to waive this provision. By execution and delivery of this Agreement, each of the Parties irrevocably consents to service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, or by recognized express carrier or delivery service, to the applicable Party at their address referred to herein. Each of the Parties irrevocably waives any objection which they may now or hereafter have to the laying of venue of any of the aforementioned actions or proceedings arising out of or in connection with this Agreement, or any related agreement, certificate or instrument referred to above, brought in the courts referred to above and hereby
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further irrevocably waives and agrees, to the fullest extent permitted by applicable law, not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in any inconvenient forum. Nothing herein will affect the right of any Party to serve process in any other manner permitted by law.
6. Validity. The invalidity or unenforceability of any provision or provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect.
7. Entire Agreement. The terms of this Agreement and the terms of the PSU Award Agreements, the RSU Award Agreements, and the Stock Option Award Agreements, as such agreements are modified by the terms of this Agreement, and the Employee Inventions, Confidentiality and Non-Compete Agreement that Executive signed as a condition of employment and that accompanies such aforementioned award agreements are intended by the Parties hereto to be the final expression of their agreement with respect to Executive’s employment and post-employment transition services, and may not be contradicted by evidence of any prior or contemporaneous agreement. The Parties further intend that this Agreement will constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding to vary the terms of this Agreement.
8. Amendments; Waivers. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by Executive and a duly authorized officer of the Company and approved by the Board, which expressly identifies the amended provision of this Agreement. By an instrument in writing similarly executed and approved by the Board, Executive or a duly authorized officer of the Company may waive compliance by the other Party hereto with any provision of this Agreement that such other Party was or is obligated to comply with or perform; provided, however, that such waiver will not operate as a waiver of, or estoppel with respect to, any other or subsequent failure to comply or perform. No failure to exercise and no delay in exercising any right, remedy, or power hereunder will preclude any other or further exercise of any other right, remedy, or power provided herein or by law or in equity.
9. Construction. This Agreement will be deemed drafted equally by both of the Parties hereto. Its language will be construed as a whole and according to its fair meaning. Any presumption or principle that the language is to be construed against any Party hereto will not apply. The headings in this Agreement are only for convenience and are not intended to affect construction or interpretation.
10. Enforcement. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision will be fully severable; this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a portion of this Agreement; and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there will be added automatically as part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
11. Section 409A. The parties hereto acknowledge and agree that any amounts payable hereunder are intended to be exempt from Section 409A of the Internal Revenue Code, but that, to the extent applicable,
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this Agreement will be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A. The Company and Executive will work together in good faith to consider either (a) amendments to this Agreement or (b) revisions to this Agreement with respect to the payment of any awards, which are necessary or appropriate to avoid imposition of any additional tax or income recognition prior to the actual payment to Executive under Section 409A.
12. Clawback and Forfeiture Policy. Executive acknowledges and agrees that the Company’s Executive Clawback and Forfeiture Policy and any other applicable compensation recoupment policy will continue to apply following the Employment Separation Date in accordance with the terms and conditions of such policies.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed this Transition and Advisory Agreement as of the Effective Date.
SLEEP NUMBER CORPORATION
By: /s/ Samuel R. Hellfeld
Name: Samuel R. Hellfeld
Title: Chief Legal and Risk Officer
EXECUTIVE
By: /s/ Shelly R. Ibach
Name: Shelly R. Ibach
Title: Chair, President and Chief Executive Officer
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[omitted pursuant to Item 601(a)(5) of Regulation S-K]