AGREEMENT.
ANY SUCH ACTIONS MUST BE BROUGHT IN SUCH COURTS.
EACH PARTY
CONSENTS TO PERSONAL JURISDICTION OVER SUCH PARTY IN THE STATE AND/OR FEDERAL
COURTS OF MINNESOTA AND HEREBY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION OR FORUM NON CONVENIENS.
(D)
SEVERABILITY.
IN THE EVENT ANY
PROVISION OF THIS AGREEMENT IS HELD ILLEGAL OR INVALID FOR ANY REASON, SUCH
ILLEGALITY OR INVALIDITY WILL NOT IN ANY WAY AFFECT THE LEGALITY OR VALIDITY OF
ANY OTHER PROVISION HEREOF AND SUCH ILLEGAL OR INVALID PROVISION WILL BE DEEMED
SEVERED FROM THIS AGREEMENT.
(E)
ENTIRE AGREEMENT.
EXCEPT FOR ANY AND
ALL AGREEMENTS OR UNDERSTANDINGS RELATED TO THE EXISTING OPTIONS (WHICH HAVE NOT
BEEN AFFECTED OR ALTERED BY THIS AGREEMENT EXCEPT AS PROVIDED IN SECTION 4(C)),
THIS AGREEMENT, THE RELEASE, AND THE SURVIVING PROVISIONS OF THE EMPLOYMENT
AGREEMENT AND THE VRP AGREEMENT SET FORTH THE ENTIRE UNDERSTANDING BETWEEN THE
COMPANY AND THE EXECUTIVE.
THIS AGREEMENT MAY NOT BE ALTERED OR AMENDED, EXCEPT
BY A WRITING EXECUTED BY THE PARTY AGAINST WHOM SUCH ALTERATION OR AMENDMENT IS
TO BE ENFORCED.
(F)
COUNTERPARTS.
THIS AGREEMENT MAY BE
SIMULTANEOUSLY EXECUTED IN ANY NUMBER OF COUNTERPARTS, AND SUCH COUNTERPARTS
EXECUTED AND DELIVERED, EACH AS AN ORIGINAL, WILL CONSTITUTE BUT ONE AND THE
SAME INSTRUMENT.
(G)
CAPTIONS AND HEADINGS.
THE CAPTIONS
AND SECTION HEADINGS USED IN THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE
ONLY, AND WILL NOT AFFECT THE CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT
OR ANY OF THE PROVISIONS HEREOF.
(H)
WAIVERS.
NO FAILURE ON THE PART OF ANY
PARTY TO EXERCISE, AND NO DELAY IN EXERCISING, ANY RIGHT OR REMEDY HEREUNDER
WILL OPERATE AS A WAIVER THEREOF; NOR WILL ANY SINGLE OR PARTIAL EXERCISE OF ANY
RIGHT OR REMEDY HEREUNDER PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF, OR THE
EXERCISE OF ANY OTHER RIGHT OR REMEDY GRANTED HEREBY OR BY ANY RELATED DOCUMENT
OR BY LAW.
NO SINGLE OR PARTIAL WAIVER OF RIGHTS OR REMEDIES HEREUNDER, NOR ANY
COURSE OF CONDUCT OF THE PARTIES, WILL BE CONSTRUED AS A WAIVER OF RIGHTS OR
REMEDIES BY ANY PARTY (OTHER THAN AS EXPRESSLY AND SPECIFICALLY WAIVED).
(I)
RELIANCE BY THIRD PARTIES.
THIS
AGREEMENT IS INTENDED FOR THE EXCLUSIVE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE HEIRS, EXECUTORS, ADMINISTRATORS, PERSONAL REPRESENTATIVES,
SUCCESSORS, AND PERMITTED ASSIGNS, AND NO OTHER PERSON OR ENTITY HAS ANY RIGHT
TO RELY ON THIS AGREEMENT OR TO CLAIM OR DERIVE ANY BENEFIT THEREFROM, ABSENT
THE EXPRESS WRITTEN CONSENT OF THE PARTY TO BE CHARGED WITH SUCH RELIANCE OR
BENEFIT.
12
(J)
ARBITRATION.
ANY DISPUTE OR
CONTROVERSY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE
SUBMITTED TO ARBITRATION IN ACCORDANCE WITH THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION THEN IN EFFECT IN MINNEAPOLIS, MINNESOTA BEFORE A SINGLE
ARBITRATOR WHO SHALL BE KNOWLEDGEABLE IN EXECUTIVE EMPLOYMENT LAW, WHO SHALL BE
INDEPENDENT OF, AND HAVE NO EX PARTE COMMUNICATIONS WITH, THE PARTIES OR THEIR
REPRESENTATIVES, AND WHO SHALL RENDER WRITTEN FINDINGS OF FACT, CONCLUSIONS OF
LAW AND ORDER.
IN ADDITION TO ANY OTHER INHERENT