ACCRUE INTEREST AT THE RATE OF 18% PER YEAR OR THE
MAXIMUM RATE PERMITTED UNDER APPLICABLE LAW.
18.
SURVIVAL. THE RESPECTIVE OBLIGATIONS OF, AND
BENEFITS AFFORDED TO, THE COMPANY AND THE EMPLOYEE WHICH BY THEIR EXPRESS TERMS
OR CLEAR INTENT SURVIVE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY OR TERMINATION OF THIS AGREEMENT, AS THE CASE MAY BE, WILL SURVIVE
TERMINATION OF THE EMPLOYEE'S 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.
19.
MISCELLANEOUS. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF MINNESOTA, AND SHALL
NOT BE AMENDED, MODIFIED OR DISCHARGED IN WHOLE OR IN PART EXCEPT BY AN
AGREEMENT IN WRITING SIGNED BY BOTH OF THE PARTIES HERETO. THE FAILURE OF EITHER
OF THE PARTIES TO REQUIRE THE PERFORMANCE OF A TERM OR OBLIGATION OR TO EXERCISE
ANY RIGHT UNDER THIS AGREEMENT OR THE WAIVER OF ANY BREACH HEREUNDER SHALL NOT
PREVENT SUBSEQUENT ENFORCEMENT OF SUCH TERM OR OBLIGATION OR EXERCISE OF SUCH
RIGHT OR THE ENFORCEMENT AT ANY TUNE OF ANY OTHER RIGHT HEREUNDER OR BE DEEMED A
WAIVER OF ANY SUBSEQUENT BREACH OF THE PROVISION SO BREACHED, OR OF ANY OTHER
BREACH HEREUNDER. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF, AND BE BINDING
UPON AND ASSIGNABLE TO, SUCCESSORS OF THE COMPANY BY WAY OF MERGER,
CONSOLIDATION OR SALE AND MAY NOT BE ASSIGNED BY THE EMPLOYEE. THIS AGREEMENT
SUPERSEDES AND TERMINATES ALL PRIOR UNDERSTANDINGS AND AGREEMENTS BETWEEN THE
PARTIES (OR THEIR PREDECESSORS) RELATING TO THE SUBJECT MATTER HEREOF. FOR
PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS WILL HAVE THE MEANING SET FORTH
BELOW UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE.
(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 COMPANY OR
(II) ANY OTHER FORM OF BUSINESS ENTITY IN WHICH THE COMPANY, 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)
"BENEFIT PLAN" MEANS ANY
(I)
EMPLOYEE BENEFIT PLAN AS DEFINED IN
SECTION 3(3) OF ERISA;
(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 PERQUISITES; 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 THE COMPANY OR ANY
AFFILIATE;
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that is sponsored, maintained or contributed to by the Company for the benefit
of employees (and/or their families and dependents) generally or the Employee in
particular (and/or the Employee's family and dependents).
(C)
"DATE OF TERMINATION" FOLLOWING A CHANGE IN
CONTROL (OR PRIOR TO A CHANGE IN CONTROL IF THE EMPLOYEE'S TERMINATION WAS
EITHER A CONDITION OF THE CHANGE IN CONTROL OR WAS AT