[Form of Change in Control Agreement
with Xxxx Xxxxxx and Xxxx Xxxxxxxxx]
Effective May 28, 1998
[Name and Address of Executive]
Dear [Executive]:
The Board considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best interests of the
Company and its stockholders. In this connection, the Board recognizes that the
possibility of a Change in Control may raise uncertainty and questions among
management which may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders.
Accordingly, the Board has determined that appropriate steps should be
taken to minimize the risk that Company executive management will depart prior
to a Change in Control, thereby leaving the Company without adequate executive
management personnel during such a critical period, and to reinforce and
encourage the continued attention and dedication of members of the Company's
executive management to their assigned duties without distraction in
circumstances arising from the possibility of a Change in Control.
The Board recognizes that continuance of your position with the Company
involves a substantial commitment to the Company in terms of your personal life
and professional career and the possibility of foregoing present and future
career opportunities, for which the Company receives substantial benefits.
Therefore, to induce you to remain in the employ of the Company, this Agreement,
which has been approved by the Board, sets forth the benefits that the Company
agrees will be provided to you in the event your employment with the Company is
terminated in connection with a Change in Control under the circumstances
described below.
1. DEFINITIONS. The following terms have the meaning set forth below
unless the context clearly requires otherwise. Terms defined elsewhere in this
Agreement have the same meaning throughout this Agreement.
(a) "AFFILIATE" means (i) any corporation at least a majority of
whose outstanding securities ordinarily having the right to vote at
elections of directors is owned directly or indirectly by the Parent
Corporation or (ii) any other form of business entity in which the
Parent Corporation, by virtue of a direct or indirect ownership
interest, has the right to elect a majority of the members of such
entity's governing body.
(b) "AGREEMENT" means this letter agreement as amended, extended
or renewed from time to time in accordance with its terms.
(c) "BASE PAY" means your annual base salary from the Company at
the rate in effect immediately prior to a Change in Control or at the
time Notice of Termination is given, whichever is greater. Base Pay
includes only regular cash salary and is determined before any
reduction for deferrals pursuant to any nonqualified deferred
compensation plan or arrangement, qualified cash or deferred
arrangement or cafeteria plan.
(d) "BENEFIT PLAN" means any
(i) employee benefit plan as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended;
(ii) cafeteria plan described in Code Section 125;
(iii) plan, policy or practice providing for paid vacation,
other paid time off or short-or long-term profit sharing, bonus
or incentive payments; or
(iv) stock option, stock purchase, restricted stock,
phantom stock, stock appreciation right or other equity-based
compensation plan with respect to the securities of any Affiliate
made available to employees of the Company generally or any group of
employees or you in particular.
(e) "BOARD" means the board of directors of the Parent
Corporation duly qualified and acting at the time in question. On and
after the date of a Change in Control, any duty of the Board in
connection with this Agreement is nondelegable and any attempt by the
Board to delegate any such duty is ineffective.
(f) "CAUSE" means:
(i) your gross misconduct;
(ii) your willful and continued failure to perform
substantially your duties with the Company (other than any such
failure (1) resulting from your incapacity due to bodily injury
or physical or mental illness or (2) relating to changes in your
duties after a Change in Control which constitute Good Reason)
after a demand for substantial performance is delivered to you by
the chair of the Board which specifically identifies the manner
in which you have not substantially performed your duties and
provides for a reasonable period of time within which you may
take corrective actions; or
(iii) your conviction (including a plea of nolo contendere)
of willfully engaging in illegal conduct constituting a felony or
gross misdemeanor under federal or state law which is materially
and demonstrably injurious to the Company or which impairs your
ability to perform substantially your duties for the Company.
An act or failure to act will be considered "gross or willful" for
this purpose only if done, or omitted to be done, by you in bad faith
and without reasonable belief that it was in, or not opposed to, the
best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board (or
a committee thereof) or based upon the advice of counsel for the
Company will be conclusively presumed to be done, or omitted to
be done, by you in good faith and in the best interests of the
Company. It is also expressly understood that your attention to
matters not directly related to the business of the Company will
not provide a basis for termination for Cause so long as the Board
did not expressly disapprove in writing of your engagement in such
activities either before or within a reasonable period of time
after the Board knew or could reasonably have known that you
engaged in those activities. Notwithstanding the foregoing, you may
not be terminated for Cause unless and until there has been
delivered to you a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called and held
for the purpose (after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard before the Board),
finding that in the good faith opinion of the Board you were guilty
of the conduct set forth above in clauses (i), (ii) or (iii) of
this definition and specifying the particulars thereof in detail.
(g) "CHANGE IN CONTROL" means any of the following:
(i) the sale, lease, exchange or other transfer, directly
or indirectly, of substantially all of the assets of the Parent
Corporation, in one transaction or in a series of related
transactions, to any Person;
(ii) any Person, other than a "bona fide underwriter,"
becomes, after the date of this Agreement, the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of 20 percent or more of the combined voting power of the Parent
Corporation's outstanding securities ordinarily having the right to
vote at elections of directors;
(iii) a merger or consolidation to which the Parent
Corporation is a party if the stockholders of the Parent Corporation
immediately prior to the effective date of such merger or
consolidation have, solely on account of ownership of securities of
the Parent Corporation at such time, "beneficial ownership" (as
defined in Rule 13d-3 under the Exchange Act) immediately following
the effective date of such merger or consolidation of securities of
the surviving corporation representing less than 80 percent of the
combined voting power of the surviving corporation's then outstanding
securities ordinarily having the right to vote at elections of
directors;
(iv) the continuity directors cease for any reason to
constitute at least a majority of the Board; or
(v) a change in control of a nature that is determined by
outside legal counsel to the Parent Corporation, in a written opinion
specifically referencing this provision of the Agreement, to be
required to be reported (assuming such event has not been "previously
reported") pursuant to Section 13 or 15(d) of the Exchange Act,
whether or not the Parent Corporation is then subject to such
reporting requirement.
For purposes of this Section 1(g), a "continuity director" means any
individual who is a member of the Board on May 28, 1998, while he or she is
a member of the Board, and any individual who subsequently becomes a member
of the Board whose election or nomination for election by the Parent
Corporation's stockholders was approved by a vote of at least a majority of
the directors who are continuity directors (either by a specific vote or by
approval of the proxy statement of the Parent Corporation in which such
individual is named as a nominee for director without objection to such
nomination). For example, if a majority of the 10 individuals
constituting the Board on May 28, 1998 approved a proxy statement in
which six different individuals were nominated to replace six of the
individuals who were members of the Board on May 28, 1998, upon their
election by the Parent Corporation's stockholders, the six newly elected
directors would join the four directors who were members of the Board on
May 28, 1998 as continuity directors. Similarly, if a majority of those
10 directors approved a proxy statement in which four different
individuals were nominated to replace the four remaining directors who
were members of the Board on May 28, 1998, upon their election by the
Parent Corporation's stockholders, the four newly elected directors
would also become, along with the other six directors, continuity
directors. Individuals subsequently joining the Board could become
continuity directors under the principles reflected in this example.
For purposes of this Section 1(g), a "bona fide underwriter" means a
Person engaged in business as an underwriter of securities that acquires
securities of the Parent Corporation through such Person's participation in
good faith in a firm commitment underwriting until the expiration of 40
days after the date of such acquisition.
(h) "CODE" means the Internal Revenue Code of 1986, as amended.
Any reference to a specific provision of the Code includes a reference to
such provision as it may be amended from time to time and to any successor
provision.
(i) "COMPANY" means the Parent Corporation, any Successor and
any Affiliate.
(j) "DATE OF TERMINATION" following a Change in Control (or
prior to a Change in Control if your termination was either a condition of
the Change in Control or was at the request or insistence of any Person
related to the Change in Control) means:
(i) if your employment is to be terminated by you for Good
Reason, the date specified in the Notice of Termination which in no
event may be a date more than 15 days after the date on which Notice
of Termination is given unless the Company agrees in writing to a
later date;
(ii) if your employment is to be terminated by the Company
for Cause, the date specified in the Notice of Termination;
(iii) if your employment is terminated by reason of your
death, the date of your death; or
(iv) if your employment is to be terminated by the Company
for any reason other than Cause or your death, the date specified in
the Notice of Termination, which in no event may be a date earlier
than 15 days after the date on which a Notice of Termination is given,
unless you expressly agree in writing to an earlier date.
In the case of termination by the Company of your employment for
Cause, if you have not previously expressly agreed in writing to the
termination, then within the 30-day period after your receipt of the Notice
of Termination, you may notify the Company that a dispute exists concerning
the termination, in which event the Date of Termination will be the date
set either by mutual written agreement of the parties or by the judge or
arbitrators in a proceeding as provided in Section 11 of this Agreement.
During the pendency of any such dispute, you will continue to make yourself
available to provide services to the Company and the Company will continue
to pay you your full compensation and benefits in effect immediately prior
to the date on which the
Notice of Termination is given (without regard to any changes to such
compensation or benefits that constitute Good Reason) and until the
dispute is resolved in accordance with Section 11 of this Agreement.
You will be entitled to retain the full amount of any such compensation
and benefits without regard to the resolution of the dispute unless the
judge or arbitrators decide(s) that your claim of a dispute was
frivolous or advanced by you in bad faith.
(k) "EMPLOYMENT AGREEMENT" means that certain Employment
Agreement, dated as of [date of employment agreement], between the Parent
Corporation and you, as amended.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended. Any reference to a specific provision of the Exchange Act or to
any rule or regulation thereunder includes a reference to such provision as
it may be amended from time to time and to any successor
(m) "GOOD REASON" means:
(i) a change in your title(s), status, position(s),
authority, duties or responsibilities as an executive of the Company
as in effect immediately prior to the Change in Control which, in your
reasonable judgment, is material and adverse (other than, if
applicable, any such change directly attributable to the fact that the
Parent Corporation is no longer publicly owned); provided, however,
that Good Reason does not include such a change that is remedied by
the Company promptly after receipt of notice of such change is given
by you;
(ii) a reduction by the Company in your Base Pay, or an
adverse change in the form or timing of the payment thereof, as in
effect immediately prior to the Change in Control or as thereafter
increased;
(iii) the failure by the Company to cover you under Benefit
Plans that, in the aggregate, provide substantially similar benefits
to you and/or your family and dependents at a substantially similar
total cost to you (e.g., premiums, deductibles, co-pays, out of pocket
maximums, required contributions and the like) relative to the
benefits and total costs under the Benefit Plans in which you (and/or
your family or dependents) were participating at any time during the
90-day period immediately preceding the Change in Control;
(iv) the Company's requiring you to be based more than 30
miles from where your office is located immediately prior to the
Change in Control, except for required travel on the Company's
business, and then only to the extent substantially consistent with
the business travel obligations which you undertook on behalf of the
Company during the 90-day period immediately preceding the Change in
Control (without regard to travel related to or in anticipation of the
Change in Control);
(v) the failure by the Company to obtain from any
Successor the assent to this Agreement contemplated by Section 5 of
this Agreement;
(vi) any purported termination by the Company of your
employment that is not properly effected pursuant to a Notice of
Termination and pursuant to any other requirements of this Agreement,
and, for purposes of this Agreement, no such purported termination
will be effective; or
(vii) any refusal by the Company to continue to allow you to
attend to matters or engage in activities not directly related to the
business of the Company which, at any time prior to the Change in
Control, you were not expressly prohibited in writing by the Board
from attending to or engaging in.
Your continued employment does not constitute consent to, or waiver of
any rights arising in connection with, any circumstances constituting Good
Reason. Your termination of employment for Good Reason as defined in this
Section 1(m) will constitute Good Reason for all purposes of this Agreement
notwithstanding that you may also thereby be deemed to have retired under
any applicable benefit plan, policy or practice of the Company.
(n) "NOTICE OF TERMINATION" means a written notice given on or
after the date of a Change in Control (unless your termination before the
date of the Change in Control was either a condition of the Change in
Control or was at the request or insistence of any Person related to the
Change in Control) which indicates the specific termination provision in
this Agreement pursuant to which the notice is given. Any purported
termination by the Company or by you for Good Reason on or after the date
of a Change in Control (or before the date of a Change in Control if your
termination was either a condition of the Change in Control or was at the
request or insistence of any Person related to the Change in Control) must
be communicated by written Notice of Termination to be effective; provided,
that your failure to provide Notice of Termination will not limit any of
your rights under this Agreement except to the extent the Company
demonstrates that it suffered material actual damages by reason of such
failure.
(o) "PARENT CORPORATION" means Xxxxxxx Corporation and any
Successor.
(p) "PERSON" means any individual, corporation partnership,
group, association or other "person," as such term is used in Section 13(d)
or Section 14(d) of the Exchange Act, other than the Parent Corporation,
any Affiliate or any benefit plan(s) sponsored by the Parent Corporation or
an Affiliate.
(q) "SUCCESSOR" means any Person that succeeds to, or has the
practical ability to control (either immediately or solely with the passage
of time), the Parent Corporation's business directly, by merger,
consolidation or other form of business combination, or indirectly, by
purchase of the Parent Corporation's outstanding securities ordinarily
having the right to vote at the election of directors or all or
substantially all of its assets or otherwise.
2. TERM OF AGREEMENT. This Agreement is effective immediately and
will continue in effect until January 1, 2000; provided, however, that
commencing on January 1, 2000 and each January 1 thereafter, the term of this
Agreement will automatically be extended for 12 additional months beyond the
expiration date otherwise then in effect, unless at least 90 calendar days prior
to any such January 1, the Company or you has given notice that this Agreement
will not be extended; and, provided, further, that if a Change in Control has
occurred during the term of this Agreement, this Agreement will continue in
effect beyond the termination date then in effect for a period of 24 months
following the month during which the Change in Control occurs or, if later,
until the date on which the Company's obligations to you arising under or in
connection with this Agreement have been satisfied in full.
3. BENEFITS UPON A CHANGE IN CONTROL TERMINATION. You will become
entitled to the benefits described in this Section 3 if and only if (i) the
Company terminates your employment for any reason other than your death or
Cause, or you terminate your employment with the Company for Good Reason and
(ii) the termination occurs either within the period beginning on the date of a
Change in Control and
ending on the last day of the twenty-fourth month that begins after the month
during which the Change in Control occurs or prior to a Change in Control if
your termination was either a condition of the Change in Control or was at
the request or insistence of a Person related to the Change in Control.
(a) CASH PAYMENT. Not more than five business days following
the Date of Termination, or, if later, not more than five business days
following the date of the Change in Control, the Company will make a
lump-sum cash payment to you in an amount equal to three times the sum
of (i) your Base Pay plus (ii) your target cash bonus for the year
during which the Change in Control occurs or the average of your cash
bonus for the three fiscal years ending immediately prior to the Change
in Control, whichever is greater. This payment is in lieu of any other
cash bonus payment to which you may otherwise be entitled under any
bonus plan for any period ending after your Date of Termination. Cash
bonus payments relating to any period ending on or before your Date of
Termination will be paid to you in accordance with the terms of the
bonus plan.
(b) HEALTH BENEFITS. During the period beginning on your Date
of Termination and ending on the last day of the thirty-sixth month that
begins after your Date of Termination, the Company will provide, or arrange
to provide, medical, dental and vision benefits (excluding premium
conversion or flexible spending accounts under any cafeteria plan) to you
(and your family members and dependents who were eligible to be covered at
any time during the 90-day period immediately prior to the date of a Change
in Control for the period after the Change in Control in which such family
members and dependents would otherwise continue to be covered under the
terms of the applicable Benefit Plan in effect immediately prior to the
Change in Control) under the same terms and at the same cost to you and
your family members and dependents as similarly situated individuals who
continue to be employed by the Company (without regard to any reduction in
such benefits that constitutes Good Reason). To the extent you incur a tax
liability (including federal, state and local taxes and any interest and
penalties with respect thereto) in connection with a benefit provided
pursuant to this Section 3(b) which you would not have incurred had you
been an active employee of the Company participating in the Company's group
health plan, the Company will make a payment to you in an amount equal to
such tax liability plus an additional amount sufficient to permit you to
retain a net amount after all taxes (including penalties and interest)
equal to the initial tax liability in connection with the benefit. For
purposes of applying the foregoing, your tax rate will be deemed to be the
highest statutory marginal state and federal tax rate (on a combined basis)
then in effect. The payment pursuant to this Section 3(b) will be made
within 10 days after your remittal of a written request for payment
accompanied by a statement indicating the basis for and amount of the
liability.
(c) SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN. The Company will
cause your account balance under the Xxxxxxx Corporation Supplemental
Executive Retirement Plan to become fully vested and nonforfeitable
effective as of the Date of Termination and at all times thereafter. In
addition, the Company will cause any distribution to which you are entitled
under the Xxxxxxx Corporation Supplemental Executive Retirement Plan to be
made without regard to any provision of the Plan that permits your
distribution to be deferred to the extent necessary to ensure that no part
of the distribution is nondeductible pursuant to Code Section 162(m).
(d) GROSS-UP PAYMENTS. Following a Change in Control, the
Company will cause its independent auditors promptly to review, at the
Company's sole expense, the applicability of Code Section 4999 to any
payment or distribution of any type by the Company to or for your benefit,
whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement, any Benefit Plan or otherwise (the "Total
Payments"). If the auditor determines that
the Total Payments result in an excise tax imposed by Code Section 4999
or any comparable state or local law or any interest or penalties with
respect to such excise tax (such excise tax, together with any such
interest and penalties, are collectively referred to as the "Excise
Tax"), the Company will make an additional cash payment (a "Gross-Up
Payment") to you within 10 days after such determination equal to an
amount such that after payment by you of all taxes (including any
interest or penalties imposed with respect to such taxes), including any
Excise Tax, imposed upon the Gross-Up Payment, you would retain an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Total Payments. For purposes of the foregoing determination, your tax
rate will be deemed to be the highest statutory marginal state and
federal tax rate (on a combined basis) then in effect. If no
determination by the Company's auditors is made prior to the time you
are required to file a tax return reflecting the Total Payments, you
will be entitled to receive from the Company a Gross-Up Payment
calculated on the basis of the Excise Tax you reported in such tax
return, within 10 days after the later of the date on which you file
such tax return or the date on which you provide a copy thereof to the
Company. In all events, if any tax authority determines that a greater
Excise Tax should be imposed upon the Total Payments than is determined
by the Company's independent auditors or reflected in your tax return
pursuant to this Section 3(d), you will be entitled to receive from the
Company the full Gross-Up Payment calculated on the basis of the amount
of Excise Tax determined to be payable by such tax authority within 10
days after you notify the Company of such determination. If any other
Benefit Plan or other plan, policy or practice of the Company or any
other agreement between you and the Company (an "Other Arrangement")
specifically provides that benefits thereunder will be reduced or
limited so that such benefits or the Total Payments will not result in
the imposition of an excise tax pursuant to Code Section 4999, the
reduction or limitation will apply, to the extent provided in the Other
Arrangement, solely to the benefits provided pursuant to the Other
Arrangement as if the benefits under the Other Arrangement constituted
the entire Total Payments, and such reduction or limitation will not
otherwise reduce or limit the actual Total Payments.
If any benefits are provided pursuant to this section, such benefits will
be in lieu of the benefits described in Section 8 of the Employment Agreement.
If, on or after the date of a Change in Control, an Affiliate is sold,
merged, transferred or in any other manner or for any other reason ceases to be
an Affiliate or all or any portion of the business or assets of an Affiliate are
sold, transferred or otherwise disposed of and the acquiror is not the Parent
Corporation or an Affiliate (a "Disposition"), and you remain or become employed
by the acquiror or an affiliate of the acquiror (as defined in this Agreement
but substituting "acquiror" for "Parent Corporation") in connection with the
Disposition, you will be deemed to have terminated employment on the effective
date of the Disposition for purposes of this Section 3 unless (x) the acquiror
and its affiliates jointly and severally expressly assume and agree, in a manner
that is enforceable by you, to perform the obligations of this Agreement to the
same extent that the Company would be required to perform if the Disposition had
not occurred and (y) the Successor guarantees, in a manner that is enforceable
by you, payment and performance by the acquiror.
4. INDEMNIFICATION. Following a Change in Control, the Company will
indemnify and advance expenses to you for damages, costs and expenses
(including, without limitation, judgments, fines, penalties, settlements and
reasonable fees and expenses of your counsel) incurred in connection with all
matters, events and transactions relating to your service to or status with the
Company or any other corporation, employee benefit plan or other entity with
whom you served at the request of the Company to the extent that the Company
would have been required to do so under applicable law, corporate articles,
bylaws or agreements or instruments of any nature with or covering you, as in
effect
immediately prior to the Change in Control and to any further extent as may
be determined or agreed upon following the Change in Control.
5. SUCCESSORS. The Parent Corporation will seek to have any
Successor, by agreement in form and substance satisfactory to you, assent to the
fulfillment by the Company of the Company's obligations under this Agreement.
Failure of the Parent Corporation to obtain such assent at least three business
days prior to the time a Person becomes a Successor (or where the Parent
Corporation does not have at least three business days' advance notice that a
Person may become a Successor, within one business day after having notice that
such Person may become or has become a Successor) will constitute Good Reason
for termination by you of your employment. The date on which any such
succession becomes effective will be deemed the Date of Termination, and Notice
of Termination will be deemed to have been given on that date. A Successor has
no rights, authority or power with respect to this Agreement prior to a Change
in Control.
6. BINDING AGREEMENT. This Agreement inures to the benefit of, and
is enforceable by, you, your personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
die while any amount would still be payable to you under this Agreement if you
had continued to live, all such amounts, unless otherwise provided in this
Agreement, will be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there be no such designee, to your
estate.
7. NO MITIGATION. You will not be required to mitigate the amount
of any benefits the Company becomes obligated to provide to you in connection
with this Agreement by seeking other employment or otherwise. The benefits to
be provided to you in connection with this Agreement may not be reduced, offset
or subject to recovery by the Company by any benefits you may receive from other
employment or otherwise.
8. NO SETOFF. The Company has no right to setoff benefits owed to
you under this Agreement against amounts owed or claimed to be owed by you to
the Company under this Agreement or otherwise.
9. TAXES. All benefits to be provided to you in connection with
this Agreement will be subject to required withholding of federal, state and
local income, excise and employment-related taxes. The Company's good faith
determination with respect to its obligation to withhold such taxes relieves it
of any obligation that such amounts should have been paid to you.
10. NOTICES. For the purposes of this Agreement, notices and all
other communications provided for in, or required under, this Agreement must be
in writing and will be deemed to have been duly given when personally delivered
or when mailed by United States registered or certified mail, return receipt
requested, postage prepaid and addressed to each party's respective address set
forth on the first page of this Agreement (provided that all notices to the
Company must be directed to the attention of the chair of the Board), or to such
other address as either party may have furnished to the other in writing in
accordance with these provisions, except that notice of change of address will
be effective only upon receipt.
11. DISPUTES. If you so elect, any dispute, controversy or claim
arising under or in connection with this Agreement will be settled exclusively
by binding arbitration administered by the American Arbitration Association in
Minneapolis, Minnesota in accordance with the Commercial Arbitration Rules of
the American Arbitration Association then in effect; provided that you may seek
specific performance of your right to receive benefits until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. If any dispute,
controversy or claim for damages arising under or in connection with this
Agreement is settled by arbitration, the Company will pay, or if elected by
you, reimburse, all fees, costs and expenses incurred by you related to such
arbitration unless the arbitrators decide that your claim was frivolous or
advanced by you in bad faith. If you do not elect arbitration, you may
pursue all available legal remedies. The Company will pay, or if elected by
you, reimburse you for, all fees, costs and expenses incurred by you in
connection with any actual, threatened or contemplated litigation relating to
this Agreement to which you are or reasonably expect to become a party,
whether or not initiated by you, if you are successful in recovering any
benefit under this Agreement as a result of such action. The parties agree
that any litigation arising under or in connection with this Agreement must
be brought in a court of competent jurisdiction in the State of Minnesota,
and hereby consent to the exclusive jurisdiction of said courts for this
purpose and agree not to assert that such courts are an inconvenient forum.
The Company will not assert in any dispute or controversy with you arising
under or in connection with this Agreement your failure to exhaust
administrative remedies.
12. RELATED AGREEMENTS.
(a) EMPLOYMENT AGREEMENT. The provisions of this Agreement
supersede the provisions of Section 8 of the Employment Agreement except
for the provisions of Section 8.5 of the Employment Agreement. This
Agreement will not otherwise control or supersede the Employment Agreement.
(b) OTHER ARRANGEMENTS. To the extent that any provision of any
Benefit Plan or other benefit plan, policy, practice or agreement between
the Company or any Affiliate and you other than the Employment Agreement
(an "Other Arrangement") limits, qualifies or is inconsistent with any
provision of this Agreement, then for purposes of this Agreement, while
such Other Arrangement remains in force, the provision of this Agreement
will control and such provision of such Other Arrangement will be deemed to
have been superseded, and to be of no force or effect, as if such Other
Arrangement had been formally amended to the extent necessary to accomplish
such purpose. Nothing in this Agreement prevents or limits your continuing
or future participation in any Other Arrangement for which you may qualify,
and nothing in this Agreement limits or otherwise affects the rights you
may have under any Other Arrangement. Amounts that are vested benefits or
which you are otherwise entitled to receive under any Other Arrangement at
or subsequent to the Date of Termination will be payable in accordance with
such Other Arrangement.
13. NO EMPLOYMENT OR SERVICE CONTRACT. Nothing in this Agreement is
intended to provide you with any right to continue in the employ of the Company
for any period of specific duration or interfere with or otherwise restrict in
any way your rights or the rights of the Company, which rights are governed by
the Employment Agreement.
14. PAYMENT; ASSIGNMENT. Benefits payable under this Agreement will
be paid only from the general assets of the Company. No person has any right to
or interest in any specific assets of the Company by reason of this Agreement.
To the extent benefits under this Agreement are not paid when due to any
individual, he or she is a general unsecured creditor of the Company with
respect to any amounts due. Benefits payable pursuant to this Agreement and the
right to receive future benefits may not be anticipated, alienated, sold,
transferred, assigned, pledged, encumbered or subject to any charge.
15. SURVIVAL. The respective obligations of, and benefits afforded
to, the Company and you which by their express terms or clear intent survive
termination of your employment with the Company or termination of this
Agreement, as the case may be, will survive termination of your employment with
the Company or termination of this Agreement, as the case may be, and will
remain in full force and effect according to their terms.
16. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in a writing signed by you and a duly authorized officer of the Parent
Corporation. No waiver by any party to this Agreement at any time of any breach
by another party to this Agreement of, or of compliance with any condition or
provision of this Agreement to be performed by such party will be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter to this Agreement have
been made by any party which are not expressly set forth in this Agreement.
This Agreement and the legal relations among the parties as to all matters,
including, without limitation, matters of validity, interpretation,
construction, performance and remedies, will be governed by and construed
exclusively in accordance with the internal laws of the State of Minnesota
(without regard to the conflict of laws principles of any jurisdiction).
Headings are for purposes of convenience only and do not constitute a part of
this Agreement. The parties to this Agreement agree to perform, or cause to be
performed, such further acts and deeds and to execute and deliver or cause to be
executed and delivered, such additional or supplemental documents or instruments
as may be reasonably required by the other party to carry into effect the intent
and purpose of this Agreement. The invalidity or unenforceability of all or any
part of any provision of this Agreement will not affect the validity or
enforceability of the remainder of such provision or of any other provision of
this Agreement, which will remain in full force and effect. This Agreement may
be executed in several counterparts, each of which will be deemed to be an
original, but all of which together will constitute one and the same instrument.
If this letter correctly sets forth our agreement on the subject matter
discussed above, kindly sign and return to the Company the enclosed copy of this
letter which will then constitute our agreement on this subject.
XXXXXXX CORPORATION
By:
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[Executive]
