COMPANY TO CONTINUE TO
ALLOW THE EMPLOYEE TO ATTEND TO MATTERS OR ENGAGE IN BUSINESS AND NON-PROFIT
ACTIVITIES NOT DIRECTLY RELATED TO THE
5
BUSINESS OF THE COMPANY WHICH THE EMPLOYEE WAS, WITH THE KNOWLEDGE OF THE BOARD
OF DIRECTORS, ATTENDING TO OR ENGAGING IN PRIOR TO THE DATE HEREOF.
The Employee's continued employment does not constitute consent to, or waiver of
any rights arising in connection with, any circumstances constituting Good
Reason. The Employee's termination of employment for Good Reason as defined
above will constitute Good Reason for all purposes of this Agreement other than
if the Employee has retired under any applicable benefit plan, policy or
practice of the Company which rights are governed by Section 8.
(G)
NOTWITHSTANDING TERMINATION OF THIS
AGREEMENT AS PROVIDED IN THIS SECTION 6 OR ANY OTHER TERMINATION OF THE
EMPLOYEE'S EMPLOYMENT WITH THE COMPANY, THE EMPLOYEE'S OBLIGATIONS UNDER
SECTION 9 HEREOF SHALL SURVIVE ANY TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH
THE COMPANY AT ANY TIME AND FOR ANY REASON.
7.
BENEFITS UPON A CHANGE IN CONTROL
TERMINATION.
(A)
THE EMPLOYEE WILL BECOME ENTITLED TO THE
BENEFITS DESCRIBED IN THIS SECTION 7 IF AND ONLY IF (I) THE EMPLOYEE TERMINATES
THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY FOR ANY REASON OR (II) THE COMPANY
TERMINATES THE EMPLOYEE'S EMPLOYMENT FOR ANY REASON OTHER THAN THE EMPLOYEE'S
DEATH OR CAUSE, AND ANY OF THESE TERMINATIONS OCCURS WITHIN ONE YEAR OF THE DATE
OF THE 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 THE
REQUEST OR INSISTENCE OF A PERSON RELATED TO THE CHANGE IN CONTROL.
(I)
CASH PAYMENT AND STOCK OPTION VESTING.
NOT MORE THAN TEN (10) DAYS FOLLOWING THE DATE OF TERMINATION, OR, IF LATER, NOT
MORE THAN TEN (10) DAYS FOLLOWING THE DATE OF THE CHANGE IN CONTROL, THE COMPANY
WILL MAKE A LUMP-SUM CASH PAYMENT TO THE EMPLOYEE IN AN AMOUNT EQUAL TO (A) 2.5
TIMES THE EMPLOYEE'S BASE PAY, PLUS (B) FIFTY PERCENT (50%) OF THE EMPLOYEE'S
MAXIMUM TARGET BONUS PLAN FOR THE YEAR IN WHICH THE CHANGE IN CONTROL OCCURS
PLUS (C) A SUM EQUAL TO TWO YEARS OF ALL BENEFITS TO BE PROVIDED TO THE EMPLOYEE
UNDER SECTION 5 OTHER THAN AS PROVIDED IN SECTION 7(B) PLUS (D) IF IT IS
DETERMINED THAT ANY PAYMENT OR DISTRIBUTION BY FARGO (OR ANY SUCCESSOR THERETO)
(THE "PAYMENTS") WILL RESULT IN AN EXCISE TAX IMPOSED BY CODE SECTION 4999 OR
ANY COMPARABLE STATE OR LOCAL LAW, OR ANY INTEREST OR PENALTIES WITH RESPECT
THERETO, FARGO (AND ANY SUCCESSOR THERETO) WILL BE RESPONSIBLE FOR MAKING AN
ADDITIONAL CASH PAYMENT (A "GROSS-UP PAYMENT") TO EMPLOYEE WITHIN TEN (10) DAYS
AFTER SUCH DETERMINATION EQUAL TO AN AMOUNT SUCH THAT, AFTER PAYMENT BY EMPLOYEE
OF ALL TAXES (INCLUDING ANY INTEREST OR PENALTIES IMPOSED WITH RESPECT TO SUCH
TAXES), INCLUDING ANY EXCISE TAX, IMPOSED UPON THE GROSS-UP PAYMENT, EMPLOYEE
WOULD RETAIN AN AMOUNT OF THE GROSS-UP PAYMENT EQUAL TO