FORM OF CHANGE IN CONTROL AGREEMENT
WITH X. XXXXXXX XXXXX, XXXX X. XXXXX AND XXXXXX X. XXXXXXXXXX
Effective February 1, 2000
[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
2
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 February 1, 2000, 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 February 1, 2000 approved a proxy statement in which six
different individuals were nominated to replace six of the individuals who
were members of the Board on February 1, 2000, 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 February 1, 2000 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
3
four remaining directors who were members of the Board on February 1, 2000,
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) "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
4
includes a reference to such provision as it may be amended from time to
time and to any successor
(l) "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 thereto, 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(1)
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.
5
(m) "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.
(n) "PARENT CORPORATION" means Xxxxxxx Corporation and any Successor.
(o) "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.
(p) "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 31, 2001; provided, however, that commencing
on January 31, 2001 and each January 31 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 31, 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 two 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
6
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 twenty-fourth 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
7
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, 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,
8
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.
9
12. RELATED AGREEMENTS. 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 (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 hereby expressly reserved to each, to terminate your employment at any
time for any reason or no reason whatsoever, with or without cause.
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
10
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: _______________________________________
____________________________________________
[Executive]
11
