EXHIBIT 10.w
CHANGE IN CONTROL AGREEMENT
AGREEMENT made as of this 13th day of March 1998 by and between MTS Systems
Corporation, a Minnesota corporation ("MTS") and Xxxxxxx X. Xxxxxx (the
"Executive").
WHEREAS, MTS considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best interests of MTS
and its shareholders; and
WHEREAS, the Executive has made and is expected to make, due to Executive's
intimate knowledge of the business and affairs of MTS, its policies, methods,
personnel and problems, a significant contribution to the profitability, growth
and financial strength of MTS; and
WHEREAS, MTS, as a publicly held corporation, recognizes that the possibility of
a Change in Control may exist and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or
distraction of the Executive in the performance of the Executive's duties to the
detriment of MTS and its shareholders; and
WHEREAS, Executive is willing to remain in the employ of MTS upon the
understanding that MTS will provide income security if the Executive's
employment is terminated under certain terms and conditions; and
WHEREAS, it is in the best interests of MTS and its stockholders to reinforce
and encourage the continued attention and dedication of management personnel,
including Executive, to their assigned duties without distraction and to ensure
the continued availability to MTS of the Executive in the event of a Change in
Control;
THEREFORE, in consideration of the foregoing and other respective covenants and
agreements of the parties herein contained, the parties hereto agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof and
shall continue in effect until the earlier of (A) the date that any and
all benefits due to Executive under this Agreement upon the happening
of the events set forth herein have been paid and satisfied and all
obligations of MTS to the Executive have been performed or (B) the date
the Executive and MTS agree in writing to terminate this Agreement.
Notwithstanding the preceding sentence, if a Change in Control occurs,
this Agreement shall remain in effect for a period of 36 months from
the date of the occurrence of a Change in Control.
2. Change in Control. If a Change in Control shall have occurred during
the term of this Agreement, the provisions of this Agreement shall
become operative and MTS agrees to employ the Executive and to provide
the benefits stated in this Agreement.
(a) Change in Control, shall, for purposes of this Agreement,
means a change in control of MTS which would be required to be
reported in response to Item 1 of Form 8-K
Change in Control Agreement Page 2
promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not MTS is then
subject to such reporting requirement, including, without
limitation, if:
(i) any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act, including any
affiliate or associate as defined in Rule 12(b)-2
under the Exchange Act of such person, other than
MTS, any trustee or other fiduciary holding
securities under an employee benefit plan of MTS, or
any corporation owned, directly or indirectly, by the
stockholders of MTS in substantially the same
proportions as their ownership of stock of MTS)
becomes a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or
indirectly, of securities of MTS representing 35% or
more of the combined voting power of MTS's then
outstanding securities; or
(ii) the Board of Directors is comprised of fewer than 65%
of the individuals described in subsection (b) below;
or
(iii) the stockholders of MTS approve a definitive
agreement to merge or consolidate MTS with or into
another corporation or other enterprise in which the
holders of outstanding stock of MTS entitled to vote
in elections of directors immediately before such
merger or consolidation hold less than 80% of the
voting power of the survivor of such merger or
consolidation or its parent, or approve a plan of
liquidation; or
(iv) at least 60% of MTS's assets are sold and transferred
to another corporation or other enterprise that is
not a subsidiary, direct or indirect, or other
affiliate of MTS; or
(v) the Board of Directors of MTS determines, by a vote
of a majority of its entire membership, that a tender
offer statement by any person (as defined above)
indicates an intention on the part of such person to
acquire control of MTS.
(b) Board of Directors shall, for purposes of subsection (a),
mean:
(i) individuals who on the date hereof constituted the
Board of MTS, and
(ii) any new director who subsequently was elected or
nominated for election by a majority of the directors
who held such office immediately prior to a Change in
Control.
(c) Friendly Change in Control shall mean a Change in Control
which arises from a transaction or series of transactions
authorized, recommended or approved at the time by formal
action of the Board of Directors.
(d) Unfriendly Change in Control shall mean a Change in Control
that is not a "Friendly Change in Control" as defined above.
An Unfriendly Change in Control shall not thereafter become a
Friendly Change in Control.
3. Termination by Reason of Death or Disability. In the event of the
Executive's death or disability during the Term of this Agreement,
Executive shall be entitled to such benefits provided under any policy,
plan or program governing death or disability maintained by
Change in Control Agreement Page 3
MTS and covering such Executive and this Agreement shall not apply. The
determination of disability and the amount and entitlement of benefits
shall be governed by the terms of such policy, plan or program. In the
event of the Executive's disability, the Executive's Date of
Termination shall be the date on which Executive has been unable, by
reason of physical or mental disability, to perform the services
required of him/her for his/her position, even with reasonable
accommodation, for the period of time indicated in MTS's group long
term disability plan (in which the Executive is a participant) during
which a participant must be disabled before benefits become payable. In
connection with Executive's termination due to disability, a qualified
physician must certify the disability and MTS shall at all times comply
with the Americans With Disabilities Act and any other applicable
disability discrimination law.
4. Termination for Cause.
(a) If Executive's employment with MTS shall be terminated by MTS
for Cause as defined below, MTS shall pay to Executive his/her
full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given and MTS
shall have no further obligation to Executive under this
Agreement.
(b) Termination by MTS of Executive's employment for "Cause" shall
mean termination as a result of:
(i) the conviction of the Executive by a court of
competent jurisdiction for felony criminal conduct;
or
(ii) willful gross misconduct or gross negligence in the
performance of his/her duties by the Executive; or
(iii) material violation by the Executive of any employment
agreement applicable to the Executive.
5. Termination Following Friendly Change in Control.
(a) If, after a Friendly Change in Control, Executive's employment
with MTS shall be terminated (A) by MTS other than for cause,
death or disability or (B) by Executive for Good Reason, then
Executive shall be entitled to the following benefits:
(i) Severance. MTS shall pay the Executive as a severance
payment (the "Severance Payment") an amount equal to
the product of 18 multiplied by the Executive's
Monthly Gross Income as defined below. The Severance
Payment shall be made in a single lump sun within 30
days after the Date of Termination, subject to all
applicable federal and state withholding.
For purposes of this Agreement, Monthly Gross Income
shall mean the sum of the following amounts:
(A) 1/12 of the highest average base salary for
any 12-consecutive month period during the
36 calendar month period ending immediately
prior to the Date of Termination (without
taking into account any reduction in such
base salary that would constitute Good
Reason); plus
Change in Control Agreement Page 4
(B) 1/36 of the total variable compensation paid
during the 3 most recent fiscal years ending
immediately prior to the Date of Termination
(without taking into account any reduction
or termination of such variable compensation
that would constitute Good Reason); plus
(C) the product of the average percentage of MTS
profit sharing contributions to the MTS
Systems Corporation Profit Sharing
Retirement Plan and Trust (as a percent of
Compensation as defined in the Plan) for the
3 most recent Plan Years ending immediately
prior to the Date of Termination multiplied
by the sum of (A) and (B) above.
(ii) Benefits. For 18 months following the Executive's
Date of Termination or, if earlier, until Executive
is covered under other group plans, MTS shall
continue to pay the employer share of the Executive's
MTS group life and health insurance premiums. All
premium payments made on Executive's behalf following
his/her Date of Termination and Executive's continued
participation in the plans are contingent upon
Executive making the appropriate timely written
elections to continue his/her group benefits
following his/her Date of Termination, said group
benefits continuing in effect for active MTS
employees, Executive continuing to be eligible under
the terms of the plans and applicable laws, and
Executive's payment of the employee portion of the
premiums for such benefits. Benefits otherwise
receivable by Executive pursuant to this subparagraph
(ii) shall be reduced or eliminated to the extent
comparable benefits are actually received by
Executive during such period from a source outside
MTS, and any such benefits actually received by
Executive shall be reported to MTS.
(b) Good Reason. Executive shall be entitled to terminate his/her
employment for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean, without Executive's express written
consent, any of the following:
(i) the assignment to Executive of any duties
inconsistent with Executive's status or position with
MTS, or a substantial alteration in the nature or
status of Executive's responsibilities; or
(ii) a reduction by MTS in Executive's annual base salary
other than a reduction comparable to other senior
Executives of MTS in connection with a company-wide
cost reduction program; or
(iii) the relocation of MTS's principal executive offices
to a location more than fifty miles from Eden
Prairie, Minnesota or MTS requiring Executive to be
based anywhere other than MTS's principal executive
offices except for required travel on MTS's business
to an extent substantially consistent with
Executive's prior business travel obligations; or
(iv) the failure by MTS to continue to provide Executive
with benefits at least as favorable to those enjoyed
by Executive under any of MTS's pension, life
insurance, medical, health and accident, disability,
deferred compensation, incentive awards, incentive
stock options, or savings plans in which Executive
Change in Control Agreement Page 5
was participating at the time of the Change in
Control, the taking of any action by MTS which would
directly or indirectly materially reduce any of such
benefits or deprive Executive of any material fringe
benefit enjoyed by Executive at the time of the
Change in Control, or the failure by MTS to provide
Executive with the number of paid vacation days to
which Executive is entitled at the time of the Change
in Control, provided, however, that MTS may amend any
such plan or programs as long as such amendments do
not reduce any benefits to which Executive would be
entitled upon termination; or
(v) the failure of MTS to obtain a satisfactory agreement
from any successor to assume and agree to perform
this Agreement, as contemplated in Section 12; or
(vi) MTS requests Executive's resignation from employment;
or
(vii) any purported termination of Executive's employment
which is not made pursuant to a Notice of Termination
satisfying the requirements of this Agreement; for
purposes of this Agreement, no such purported
termination shall be effective; or
(viii) any material violation by MTS of this Agreement.
(c) Voluntary Termination Deemed Good Reason. Notwithstanding
anything herein to the contrary, during the period commencing
on the 30th day following a Change in Control (whether
Friendly or Unfriendly) and ending on the 180th day following
a Change in Control, Executive may voluntarily terminate his
employment for any reason, and such termination shall be
deemed "Good Reason" for all purposes of this Agreement.
6. Termination - Unfriendly Change in Control.
(a) If, after an Unfriendly Change in Control, Executive's
employment with MTS is terminated (A) by MTS other than for
Cause, death or disability, or (B) by Executive for Good
Reason, the Executive shall be entitled to the following
benefits:
(i) Severance. MTS shall pay the Executive as a severance
payment (the "Severance Payment") an amount equal to
the product of 36 multiplied by the Executive's
Monthly Gross Income as defined in Section 5(a)(i)
above. The Severance Payment shall be made in a
single lump sum within 30 days after the Date of
Termination, subject to all applicable federal and
state withholding.
(ii) Benefits. For 36 months following the Executive's
Date of Termination or, if earlier, until Executive
is covered under other group plans, MTS shall
continue to pay the employer share of the Executive's
MTS group life and health insurance premiums or, if
group continuation coverage is no longer available
for any reason other than the Executive's coverage
under other group plans, the full premiums under
other plans which MTS shall obtain for the
Executive's benefit and with the Executive's
approval. All MTS group plan
Change in Control Agreement Page 6
premium payments made on Executive's behalf following
his/her Date of Termination and Executive's continued
participation in the plans are contingent upon
Executive making the appropriate timely written
elections to continue his/her group benefits
following his/her Date of Termination, said group
benefits continuing in effect for active MTS
employees, Executive continuing to be eligible under
the terms of the plans and applicable laws, and
Executive's payment of the employee portion of the
premiums for such benefits. Benefits otherwise
receivable by Executive pursuant to this subparagraph
(ii) shall be reduced or eliminated to the extent
comparable benefits are actually received by
Executive during such period from a source outside
MTS, and any such benefits actually received by
Executive shall be reported to MTS.
(b) If the Executive voluntarily terminates his employment other
than for Good Reason but more than 180 days after an
Unfriendly Change in Control, Executive shall be entitled to
the following benefits:
(i) Severance. MTS shall pay to Executive as a severance
payment (the "Severance Payment") an amount equal to
the product of 18 multiplied by the Executive's
monthly Gross Income as defined in Section 5(a)(i)
above. The Severance Payment shall be made in a
single lump sum within 30 days after the Date of
Termination, subject to all applicable federal and
state withholding.
(ii) Benefits. For 18 months following the Executive's
Date of Termination or, if earlier, until Executive
is covered under other group plans, MTS shall
continue to pay the employer share of the Executive's
MTS group life and health insurance premiums. All
premium payments made on Executive's behalf following
his Date of Termination and Executive's continued
participation in the plans are contingent upon
Executive making the appropriate timely written
elections to continue his/her group benefits
following his Date of Termination, said group
benefits continuing in effect for active MTS
employees, Executive continuing to be eligible under
the terms of the plans and applicable laws, and
Executive's payment of the employee portion of the
premiums for such benefits. Benefits otherwise
receivable by Executive pursuant to this subparagraph
(ii) shall be reduced or eliminated to the extent
comparable benefits are actually received by
Executive during such period from a source outside
MTS, and any such benefits actually received by
Executive shall be reported td MTS.
7. Additional Benefits. In addition to all other amounts payable and
benefits receivable to Executive upon termination of employment covered
under this Agreement, Executive shall be entitled to the following
benefits:
(a) Legal Fees. In the event of any termination of employment
under this Agreement, other than termination for Cause, MTS
shall pay to Executive all legal fees and expenses reasonably
incurred by Executive in contesting or disputing any such
termination or in seeking to obtain or enforce any right or
benefit provided by this Agreement.
Change in Control Agreement Page 7
(b) Retirement Plan. Executive shall, upon termination of
employment, be entitled to receive all benefits payable to the
Executive under the MTS Systems Corporation Profit Sharing
Retirement Plan and any other plan or agreement relating to
retirement benefits.
(c) Employee Stock Option Certificate. The Executive's rights
under any existing Employee Stock Option Agreement and any
future such agreements, including particularly his/her right
to exercise his/her option rights following his termination of
employment, shall continue to be fully effective hereunder.
8. No Mitigation. Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Agreement be reduced by any compensation earned by
Executive as the result of employment by another employer or by
retirement benefits after the Date of Termination, or except as
otherwise provided in this Agreement.
9. Potential Excise Tax Indemnification
(a) Excise Tax. Should any payments hereunder or contemplated
hereby be subject to excise tax pursuant to Section 4999 of
the Internal Revenue Code of 1986, as may be amended, or any
successor or similar provision thereto, or comparable state or
local tax laws, MTS shall pay to the Executive such additional
compensation as is necessary (after taking into account all
federal, state and local income taxes payable by the Executive
as a result of the receipt of such compensation) to place the
Executive in the same after-tax position he/she would have
been in had no such excise tax (or any interest or penalties
thereon) been paid or incurred. MTS shall pay such additional
compensation upon the earlier of
(i) the time at which MTS withholds such excise tax from
any payments to the Executive; or
(ii) 30 days after the Executive notifies MTS that the
Executive has paid such excise tax pursuant to a tax
return filed by the Executive which takes the
position that such excise tax is due and payable in
reliance on a written opinion of the Executive's tax
counsel that it is more likely than not that such
excise tax is due and payable, or, if later, the date
the IRS notifies Executive that such amount is due
and payable.
Without limiting the obligation of MTS hereunder, the
Executive agrees, in the event the Executive makes any payment
pursuant to the preceding sentence, to negotiate with MTS in
good faith with respect to procedures reasonably requested by
MTS which would afford MTS the ability to contest the
imposition of such excise tax; provided, however, that the
Executive will not be required to afford MTS any right to
contest the applicability of any such excise tax to the extent
that the Executive reasonably determines that such contest is
inconsistent with the overall tax interests of the Executive.
Change in Control Agreement Page 8
MTS agrees to hold in confidence and not to disclose, without
the Executive's prior written consent, any information with
regard to the Executive's tax position which MTS obtains
pursuant to this subsection.
(b) Indemnification. MTS will indemnify the Executive (and his/her
legal representative or other successors) to the fullest
extent permitted (including payment of expenses in advance of
final disposition of the proceeding) by the laws of the State
of Minnesota, as in effect at the time of the subject act or
omission, or the Articles of Incorporation and By-Laws of MTS
as in effect at such time or on the date of this Agreement,
whichever affords or afforded greater protection to the
Executive; and the Executive shall be entitled to the
protection of any insurance policies MTS may elect to maintain
generally for the benefit of its directors and officers,
against all costs, charges and expenses whatsoever incurred or
sustained by the Executive or his/her legal representatives in
connection with any action, suit or proceeding to which he/she
(or his/her legal representative or other successors) may be
made a party by reason of his/her being or having been a
director, officer or employee of MTS or any of its
subsidiaries or his/her serving or having served any other
enterprise as a director, officer or employee at the request
of MTS, provided that MTS shall cause to be maintained in
effect for not less than six years from the date of a Change
in Control (to the extent available) policies of directors'
and officers' liability insurance of at least the same
coverage as those maintained by MTS on the date of this
Agreement and containing terms and conditions which are no
less advantageous than such policies.
10. Non-Competition and Confidentiality.
(a) Noncompetition. Except as provided in subsection (c) below,
Executive agrees that, as a condition of receiving benefits
under this Agreement, he/she will not render services directly
or indirectly to any competing organization, wherever located,
for a period of one year following the Date of Termination, in
connection with the design, implementation, development,
manufacture, marketing, sale, merchandising, leasing,
servicing or promotion of any "Conflicting Product" which as
used herein means any product, process, system or service of
any person, firm, corporation, organization other than MTS, in
existence or under development, which is the same as or
similar to or competes with, or has a usage allied to, a
product, process, system, or service produced, developed, or
used by MTS. Executive agrees that violation of this covenant
not to compete with MTS shall result in immediate cessation of
all benefits hereunder, other than insurance benefits, which
Executive may continue where permitted under federal and state
law at his/her own expense.
(b) Confidentiality. Executive further agrees and acknowledges
his/her existing obligation that at all times during and
subsequent to his/her employment with MTS, he/she will not
divulge or appropriate to his/her own use or the uses of
others any secret or confidential information or knowledge
pertaining to the business of MTS, or any of its subsidiaries,
obtained during his/her employment by MTS or any of its
subsidiaries.
Change in Control Agreement Page 9
(c) Waiver - Unfriendly Change in Control. Notwithstanding
anything herein to the contrary: the restriction on
competition under subsection (a) shall not apply if the
Executive's employment terminates following an Unfriendly
Change in Control. Furthermore, in such event, MTS waives any
other restriction on Executive's employment and consents
unconditionally to any employment Executive may subsequently
obtain.
11. Funding of Payments. In order to assure the performance of MTS or its
successor of its obligations under this Agreement, MTS may deposit in a
so-called "rabbi" trust an amount equal to the maximum payment that
will be due the Executive under the terms hereof provided, however,
that MTS shall deposit in trust the amount equal to the maximum payment
due Executive immediately upon an Unfriendly Change in Control. Under
such written trust instrument, the Trustee shall be instructed to pay
to the Executive (or the Executive's legal representative, as the case
may be) the amount to which the Executive shall be entitled under the
terms hereof and the balance, if any, of the trust not so paid or
reserved for payment shall be repaid to MTS. If MTS deposits funds in
trust, payment shall be made no later than the occurrence of a Change
in Control. The written instrument governing the trust shall be
irrevocable from and after such Change in Control and shall contain
such provisions protective of the Executive as are contained in similar
trust agreements approved by the Internal Revenue Service in published
private letter rulings (provided that the assets of the trust shall be
reachable by creditors of MTS as required by such rulings). The trustee
shall be a national bank selected by MTS with the consent of the
Executive, with trust powers and whose principal officers are located
in the Minneapolis/St. Xxxx metropolitan area. The trustee shall
invest the assets of the trust in any readily marketable securities of
U.S. corporations (other than MTS, its successor, or any affiliate of
MTS or its successor). If and to the extent there are not amounts in
trust sufficient to pay Executive under this Agreement, MTS shall
remain liable for any and all payments due to Executive.
12. Successors; Binding Agreement.
(a) Successors. MTS will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of MTS
to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that MTS would be required
to perform it if no such succession had taken place. Failure
of MTS to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to compensation from MTS
in the same amount and on the same terms as he would be
entitled hereunder if he terminated his employment for Good
Reason following a Change in Control, except that for purposes
of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of
Termination.
(b) Binding Agreement. This Agreement shall inure to the benefit
of and be enforceable by Executive's personal or legal
representatives, successors, heirs, and designated
beneficiaries. If Executive should die while any amount would
still be payable to Executive hereunder if the Executive had
continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this
Change in Control Agreement Page 10
Agreement to the Executive's designated beneficiaries or, if
there is no such designated beneficiary, to the Executive's
estate.
13. Notice.
(a) Form and Delivery. All notices and other communications
provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by
United States registered or certified mail, return receipt
requested, postage prepaid, addressed to the last known
residence address of the Executive or in the case of MTS, to
its principal office to the attention of each of the then
directors of MTS with a copy to its Secretary, or to such
other address as either party may have furnished to the other
in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
(b) Notice of Termination. Any purported termination of
Executive's employment by MTS or by Executive shall be
communicated by written Notice of Termination to the other
party hereto, which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth
the facts and circumstances claimed to provide a basis for
termination of Executive's employment.
(c) Date of Termination. For purposes of this Agreement, "Date of
Termination" shall mean the date specified in the Notice of
Termination which shall not be less than 10 nor more than 30
days, respectively, from the date such Notice of Termination
is given.
(d) Dispute of Termination. If, within 10 days after any Notice of
Termination is given, the party receiving such Notice of
Termination notifies the other party that a dispute exists
concerning the termination, the Date of Termination shall be
the date on which the dispute is finally determined, either by
mutual written agreement of the parties, or by a final
judgment, order or decree of a court of competent jurisdiction
(which is not appealable or the time for appeal therefrom
having expired and no appeal having been perfected); provided,
that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the
party giving such notice pursues the resolution of such
dispute with reasonable diligence in accordance with Section
14 below. Notwithstanding the pendency of any such dispute,
MTS shall continue to pay Executive full compensation in
effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary) and continue
Executive as a participant in all compensation, benefit and
insurance plans in which the Executive was participating when
the notice giving rise to the dispute was given, until the
dispute is finally resolved in accordance with this subsection
or at the end of a period of 180 days, whichever first occurs.
Amounts paid under this subsection are in addition to all
other amounts due under this Agreement and shall not be offset
against or reduce any other amounts under this Agreement.
14. Arbitration. Any dispute arising under or in connection with this
Agreement (including without limitation, the making of this Agreement
or the Executive's termination of employment) shall be resolved by
final and binding arbitration to be held in Minneapolis, Minnesota in
accordance with the rules and procedures of the American Arbitration
Change in Control Agreement Page 11
Association. The parties shall select a mutually acceptable single
arbitrator to resolve the dispute or if they fail or are unable to do
so, each side shall within the following ten business days select a
single arbitrator and the two so selected shall select a third
arbitrator within the following ten business days. The arbitrator shall
have no power to award any punitive or exemplary damages. The
arbitrator may construe or interpret, but shall not ignore or vary the
terms of this Agreement, and shall be bound by controlling law. The
arbitration award or other resolution may be entered as a judgment at
the request of the prevailing party by any court of competent
jurisdiction in Minnesota or elsewhere.
15. Miscellaneous.
(a) Modification and Waiver. Except as otherwise specifically
provided in this Agreement, no provision of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed
by the parties. No waiver by either party hereto at any time
of any breach by the other party to this Agreement of, or
compliance with, any other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or
at any prior or similar time.
(b) Entire Agreement. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not
expressly set forth in this Agreement.
(c) Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of
the State of Minnesota.
(d) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
IN WITNESS WHEREOF, MTS, through its authorized officer, and the Executive have
executed this Agreement as of the day and date first above written.
EXECUTIVE MTS SYSTEMS CORPORATION
/s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxxxx
--------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx
Its Chairman
--------------------------------
