OF CODE §409A. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THE SEVERANCE PAYMENTS PAYABLE TO YOU ARE INTENDED AND SHALL BE INTERPRETED TO
BE EXEMPT FROM THE REQUIREMENTS OF CODE §409A IN RELIANCE UPON TREAS. REG.
§1.409A-1(B)(9)(III) (RELATING TO SEPARATION PAY PLANS) OR TREAS. REG.
§1.409A-1(B)(4) (RELATING TO SHORT-TERM DEFERRALS).
HOWEVER, TO THE EXTENT ANY
SUCH PAYMENTS ARE TREATED AS "NON-QUALIFIED DEFERRED COMPENSATION" SUBJECT TO
CODE §409A AND ANY PAYMENT OTHERWISE SPECIFIED IN THIS AGREEMENT OR ELSEWHERE
WOULD IN THE REASONABLE GOOD FAITH DETERMINATION OF
THE COMPANY OR YOU SUBJECT
SUCH AMOUNT OR BENEFIT TO ADDITIONAL TAX PURSUANT TO CODE §409A(A)(1)(B), YOU
AND THE COMPANY SHALL IN GOOD FAITH AMEND THIS AGREEMENT TO AVOID OR MITIGATE
SUCH ADDITIONAL TAX, PRESERVING, TO THE GREATEST EXTENT POSSIBLE, THE ECONOMIC
VALUE OF THE AMOUNT DUE UNDER THIS AGREEMENT.
15.
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 BY EACH, TO TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR
ANY REASON OR NO REASON WHATSOEVER, WITH OR WITHOUT CAUSE.
16.
GENERAL PROVISIONS.
(A)
THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED EXCEPT BY A
WRITTEN AGREEMENT SIGNED BY YOU AND AN OFFICER OF THE COMPANY DULY AUTHORIZED BY
THE BOARD.
(B)
IN THE EVENT THAT ANY PROVISION OR PORTION OF THIS AGREEMENT
IS DETERMINED TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THE REMAINING
PROVISIONS OF THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT TO THE FULLEST
EXTENT PERMITTED BY LAW. IN THE EVENT ANY PROVISION IS HELD TO BE OVERBROAD,
THAT PROVISION WILL BE DEEMED AMENDED TO NARROW ITS APPLICATION TO THE EXTENT
NECESSARY TO RENDER THE PROVISION ENFORCEABLE ACCORDING TO APPLICABLE LAW.
7
(C)
THIS AGREEMENT WILL BIND AND BENEFIT THE PARTIES HERETO AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
(D)
THIS AGREEMENT HAS BEEN MADE IN AND WILL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS OF ANY JURISDICTION.
(E)
NO FAILURE ON THE PART OF EITHER PARTY TO EXERCISE, AND NO
DELAY IN EXERCISING, ANY RIGHT OR REMEDY UNDER THIS AGREEMENT WILL OPERATE AS A
WAIVER; NOR WILL ANY SINGLE OR PARTIAL EXERCISE OF ANY RIGHT OR REMEDY PRECLUDE
ANY OTHER OR FURTHER EXERCISE OF ANY RIGHT OR REMEDY.
(F)
THIS AGREEMENT CONTAINS OUR ENTIRE UNDERSTANDING AND
AGREEMENT WITH RESPECT TO THESE MATTERS AND SUPERSEDES AND REPLACES ALL OTHER
PREVIOUS AGREEMENTS, DISCUSSIONS, OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
BETWEEN OR ON THE SAME SUBJECTS.
(G)
ALL TERMS OF THIS AGREEMENT AND INTENDED TO BE OBSERVED AND
PERFORMED AFTER THE TERMINATION OF THIS AGREEMENT WILL SURVIVE SUCH TERMINATION
AND WILL CONTINUE IN FULL FORCE AND EFFECT THEREAFTER.
(H)
THIS AGREEMENT