BECOME OR HAS BECOME A SUCCESSOR)
WILL CONSTITUTE GOOD REASON FOR TERMINATION BY THE EXECUTIVE OF THE EXECUTIVE'S
EMPLOYMENT. THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES EFFECTIVE WILL BE
DEEMED THE DATE OF TERMINATION, AND NOTICE OF TERMINATION WILL BE DEEMED TO HAVE
BEEN GIVEN ON THAT DATE. A SUCCESSOR HAS NO RIGHTS, AUTHORITY OR POWER WITH
RESPECT TO THIS AGREEMENT PRIOR TO A CHANGE IN CONTROL.
(B)
BINDING AGREEMENT. THIS AGREEMENT INURES TO
THE BENEFIT OF, AND IS ENFORCEABLE BY, THE EXECUTIVE, THE EXECUTIVE'S PERSONAL
AND LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS,
DISTRIBUTEES, DEVISEES AND LEGATEES. IF THE EXECUTIVE DIES WHILE ANY AMOUNT
WOULD STILL BE PAYABLE TO THE EXECUTIVE UNDER THIS AGREEMENT IF THE EXECUTIVE
HAD CONTINUED TO LIVE, ALL SUCH AMOUNTS, UNLESS OTHERWISE PROVIDED IN THIS
AGREEMENT, WILL BE PAID IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT TO THE
EXECUTIVE'S DEVISEE, LEGATEE OR OTHER DESIGNEE OR, IF THERE BE NO SUCH DESIGNEE,
TO THE EXECUTIVE'S ESTATE.
(C)
NO MITIGATION. THE EXECUTIVE WILL NOT BE
REQUIRED TO MITIGATE THE AMOUNT OF ANY BENEFITS THE COMPANY BECOMES OBLIGATED TO
PROVIDE TO THE EXECUTIVE IN CONNECTION WITH THIS AGREEMENT BY SEEKING OTHER
EMPLOYMENT OR OTHERWISE. THE BENEFITS TO BE PROVIDED TO THE EXECUTIVE IN
CONNECTION WITH THIS AGREEMENT MAY NOT BE REDUCED, OFFSET OR SUBJECT TO RECOVERY
BY THE COMPANY BY ANY BENEFITS THE EXECUTIVE MAY RECEIVE FROM OTHER EMPLOYMENT
OR OTHERWISE.
6
(D)
NO SETOFF. THE COMPANY HAS NO RIGHT TO
SETOFF BENEFITS OWED TO THE EXECUTIVE UNDER THIS AGREEMENT AGAINST AMOUNTS OWED
OR CLAIMED TO BE OWED BY THE EXECUTIVE TO THE COMPANY UNDER THIS AGREEMENT OR
OTHERWISE.
(E)
TAXES. ALL BENEFITS TO BE PROVIDED TO THE
EXECUTIVE IN CONNECTION WITH THIS AGREEMENT WILL BE SUBJECT TO REQUIRED
WITHHOLDING OF FEDERAL, STATE AND LOCAL INCOME, EXCISE AND EMPLOYMENT-RELATED
TAXES. THE COMPANY'S GOOD FAITH DETERMINATION WITH RESPECT TO ITS OBLIGATION TO
WITHHOLD SUCH TAXES RELIEVES IT OF ANY OBLIGATION THAT SUCH AMOUNTS SHOULD HAVE
BEEN PAID TO THE EXECUTIVE.
(F)
NOTICES. FOR THE PURPOSES OF THIS
AGREEMENT, NOTICES AND ALL OTHER COMMUNICATIONS PROVIDED FOR IN, OR REQUIRED
UNDER, THIS AGREEMENT MUST BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DULY
GIVEN WHEN PERSONALLY DELIVERED OR WHEN MAILED BY UNITED STATES REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID AND ADDRESSED TO EACH
PARTY'S RESPECTIVE ADDRESS SET FORTH ON THE FIRST PAGE OF THIS AGREEMENT
(PROVIDED THAT ALL NOTICES TO THE COMPANY MUST BE DIRECTED TO THE ATTENTION OF
THE PRESIDENT), OR TO SUCH OTHER ADDRESS AS EITHER PARTY MAY HAVE FURNISHED TO
THE OTHER IN WRITING IN ACCORDANCE WITH THESE PROVISIONS, EXCEPT THAT NOTICE OF
CHANGE OF ADDRESS WILL BE EFFECTIVE ONLY UPON RECEIPT.
(G)
DISPUTES. IF THE EXECUTIVE SO ELECTS, ANY
DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT
WILL BE SETTLED EXCLUSIVELY BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN
ARBITRATION ASSOCIATION IN MINNEAPOLIS, MINNESOTA IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN