any further extent as may be determined or agreed upon following the
Change in Control.
5.
MISCELLANEOUS.
(A)
SUCCESSORS.
FARGO MUST HAVE ANY SUCCESSOR,
BY AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO THE EXECUTIVE, ASSENT TO THE
FULFILLMENT BY THE COMPANY OF THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT.
FAILURE BY ANY SUCCESSOR TO ENTER INTO SUCH AGREEMENT WILL CONSTITUTE GOOD
REASON FOR TERMINATION BY THE EXECUTIVE OF THE EXECUTIVE'S EMPLOYMENT.
(B)
BINDING AGREEMENT.
THIS AGREEMENT INURES TO
THE BENEFIT OF, AND IS ENFORCEABLE BY, THE EXECUTIVE, OR IN THE EVENT OF DEATH
OR INCAPACITY OF THE EXECUTIVE, THE EXECUTIVE'S PERSONAL AND LEGAL
REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES,
DEVISEES AND LEGATEES.
(C)
NO MITIGATION.
THE EXECUTIVE WILL NOT BE
REQUIRED TO MITIGATE THE AMOUNT OF ANY BENEFITS THE SUCCESSOR BECOMES OBLIGATED
TO PROVIDE TO THE EXECUTIVE IN CONNECTION WITH THIS AGREEMENT BY SEEKING OTHER
EMPLOYMENT OR OTHERWISE.
(D)
NO SETOFF.
THE SUCCESSOR 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 FARGO OR THE SUCCESSOR 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 SUCCESSOR'S GOOD FAITH
6
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 TO THE ADDRESS OF EITHER PARTY ON THE
FIRST PAGE OF THIS AGREEMENT OR TO ANY OTHER ADDRESS OF WHICH ONE PARTY NOTIFIES
THE OTHER.
(G)
DISPUTES.
THE PARTIES AGREE THAT 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 IN
EFFECT.
THE ARBITER'S DECISION WILL BE BINDING ON BOTH PARTIES. THE SUCCESSOR
WILL PAY ALL FEES AND COSTS OF THE ARBITRATION INCLUDING LEGAL FEES.
(H)
RELATED AGREEMENTS AND OTHER ARRANGEMENTS.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF OTHER THAN THE OPTIONS OUTSTANDING UNDER THE STOCK
OPTION PLAN, AND NO AGREEMENTS OR REPRESENTATIONS, ORAL OR OTHERWISE, EXPRESS OR
IMPLIED, WITH RESPECT TO THE SUBJECT MATTER TO THIS AGREEMENT HAVE BEEN MADE BY
ANY PARTY WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
IF THERE ARE ANY
OTHER AGREEMENTS OR PROVISIONS IN OTHER AGREEMENTS TO THE CONTRARY, THIS
AGREEMENT SHALL APPLY AND TAKE PRECEDENCE.
(I)
NO EMPLOYMENT OR SERVICE CONTRACT.
NOTHING IN THIS AGREEMENT IS INTENDED TO PROVIDE THE EXECUTIVE