IN WHOLE OR IN PART, TO BE BINDING UPON AND INURE TO THE BENEFIT OF ANY
SUBSIDIARY OR SUCCESSOR OF THE COMPANY, PROVIDED EITHER THE SUCCESSOR HAS A NET
WORTH GREATER THAN THE COMPANY AT THE TIME OF ASSIGNMENT OR THE COMPANY REMAINS
PRIMARILY LIABLE WITH RESPECT TO THE OBLIGATIONS SO ASSIGNED.
(H)
COSTS OF ENFORCEMENT, LITIGATION.
IN THE EVENT OF ANY SUIT OR
PROCEEDING SEEKING TO ENFORCE THE TERMS, COVENANTS, OR CONDITIONS OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL, IN ADDITION TO ALL OTHER REMEDIES AND
RELIEF THAT MAY BE AVAILABLE UNDER THIS AGREEMENT OR APPLICABLE LAW, RECOVER
HIS/HER OR ITS REASONABLE ATTORNEYS' FEES AND COSTS AS SHALL BE DETERMINED AND
AWARDED BY THE COURT. ANY CONTROVERSY OR DISPUTE WITH RESPECT TO THE TERMS OF
SECTION 5, 6, 7 OR 8 OF THIS AGREEMENT WILL SURVIVE TERMINATION OF THIS
AGREEMENT AND SHALL BE LITIGATED IN THE STATE OF FEDERAL COURTS OF COMPETENT
JURISDICTION SITUATED IN MILWAUKEE, WISCONSIN, TO WHICH JURISDICTION AND VENUE
ALL PARTIES CONSENT.
(I)
MITIGATION.
THE EXECUTIVE SHALL NOT BE OBLIGATED TO SEEK OTHER
EMPLOYMENT IN MITIGATION OF THE AMOUNTS PAYABLE UNDER THIS AGREEMENT, AND THE
OBTAINING OF ANY SUCH OTHER EMPLOYMENT SHALL IN NO EVENT EFFECT ANY REDUCTION OF
THE COMPANY'S OBLIGATIONS TO MAKE PAYMENTS HEREUNDER. NOTWITHSTANDING THE
FOREGOING, IF EXECUTIVE RECEIVES THE PAYMENTS DESCRIBED IN SECTION 9 BY
TERMINATING HIS/HER EMPLOYMENT FOLLOWING A CHANGE IN CONTROL AND EXECUTIVE
SUBSEQUENTLY BECOMES RE-EMPLOYED BY THE COMPANY OR BY THE PARTY OR PARTIES
EFFECTING THE CHANGE IN CONTROL, THE
8
AMOUNTS EARNED ON RE-EMPLOYMENT (UP TO A PERIOD OF ONE YEAR'S COMPENSATION)
SHALL BE REPAID TO THE COMPANY.
10.
EXECUTIVE ACKNOWLEDGEMENT.
THE EXECUTIVE ACKNOWLEDGES THAT:
(A)
THE EXECUTIVE HAS HAD SUFFICIENT TIME TO REVIEW THIS KEY OFFICER
AGREEMENT THOROUGHLY;
(B)
THE EXECUTIVE HAS READ AND UNDERSTANDS THE TERMS OF THIS KEY
OFFICER AGREEMENT AND THE OBLIGATIONS HEREUNDER;
(C)
THE EXECUTIVE HAS RECEIVED THE GOOD AND ADEQUATE CONSIDERATION FOR
ENTERING INTO THIS KEY OFFICER AGREEMENT; AND
(D)
THE EXECUTIVE HAS BEEN GIVEN AN OPPORTUNITY TO OBTAIN INDEPENDENT
LEGAL ADVICE CONCERNING THE INTERPRETATION AND EFFECT OF THIS KEY OFFICER
AGREEMENT.
IN WITNESS WHEREOF, this Agreement is entered into as of the day and year first
above written.
COMPANY:
MERGE TECHNOLOGIES INCORPORATED
By:
/s/ Richard A. Linden
Richard A. Linden
President and Chief Executive Officer
EXECUTIVE:
By:
/s/ Steve Oreskovich
Steve Oreskovich
9
RELEASE
EXHIBIT A
I, _______________ (Employee), in consideration of the payments made by Merge
Technologies Incorporated ("Company") to me pursuant to the severance section in
the Key Officer Agreement, dated _____________________, the adequacy of which is
hereby acknowledged, do hereby release and discharge the Company and all of its
directors, officers, owners, agents, employees, attorneys, insurers, affiliates,
subsidiaries, related corporations, predecessors, successors, heirs and assigns,
(collectively "Released Persons and Entities") from any and all sums of money,
attorneys fees, accounts, motions, causes of action, claims, demands or
liabilities of any 'kind or character whatsoever, whether known or unknown,
which I either have had or now have