THE JOB, THAT, IN EITHER EVENT, IS PUBLICLY DETRIMENTAL TO THE
REPUTATION OR GOODWILL OF THE COMPANY;
III.
THE CONVICTION OF EMPLOYEE OF A FELONY, OR EMPLOYEE'S ENTRY OF A
NO CONTEST OR NOLO CONTENDRE PLEA TO A FELONY;
IV.
FAILURE OF EMPLOYEE TO PERFORM EMPLOYEE'S MATERIAL DUTIES AND
RESPONSIBILITIES HEREUNDER OR TO MEET REASONABLE PERFORMANCE OBJECTIVES SET BY
THE CEO OR BOARD, AS APPLICABLE, FROM TIME TO TIME, WHICH FAILURE HAS NOT BEEN
CURED BY EMPLOYEE WITHIN FIVE DAYS AFTER WRITTEN NOTICE THEREOF TO EMPLOYEE FROM
THE COMPANY;
V.
REPEATED OR WILLFUL FAILURE OF EMPLOYEE TO PERFORM EMPLOYEE'S
MATERIAL DUTIES OR RESPONSIBILITIES OR TO MEET THE REASONABLE PERFORMANCE
OBJECTIVES SET BY THE CEO OR THE BOARD; OR
VI.
MATERIAL BREACH OF ANY TERMS OR CONDITIONS OF THIS AGREEMENT BY
EMPLOYEE.
(D)
IN THE EVENT OF TERMINATION OF EMPLOYEE'S EMPLOYMENT, THE SOLE
OBLIGATION OF THE COMPANY UNDER THIS AGREEMENT WILL BE ITS OBLIGATION TO MAKE
THE PAYMENTS CALLED FOR BY SECTIONS 12(A) OR 12(B) HEREOF, AS THE CASE MAY BE,
AND THE COMPANY WILL HAVE NO OTHER OBLIGATION TO EMPLOYEE OR TO EMPLOYEE'S
BENEFICIARY OR EMPLOYEE'S ESTATE, EXCEPT AS OTHERWISE PROVIDED BY LAW, THE TERMS
OF ANY OTHER APPLICABLE WRITTEN AGREEMENT BETWEEN EMPLOYEE AND THE COMPANY,
AND/OR THE TERMS OF ANY EMPLOYEE BENEFIT PLAN OR PROGRAM THEN MAINTAINED BY THE
COMPANY AND IN WHICH EMPLOYEE PARTICIPATES.
(E)
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION 12, THE
COMPANY WILL NOT BE OBLIGATED TO MAKE ANY PAYMENTS TO EMPLOYEE UNDER SECTION
12(A) UNLESS EMPLOYEE HAS SIGNED A GENERAL RELEASE OF ANY AND ALL CLAIMS RELATED
TO HIS EMPLOYMENT IN A FORM TO BE PRESCRIBED BY THE COMPANY, THE PERIOD OF TIME
FOR RESCINDING THE GENERAL RELEASE HAS EXPIRED, AND EMPLOYEE IS IN STRICT
COMPLIANCE WITH THE TERMS OF THIS AGREEMENT AS OF THE DATE OF EACH SUCH
PAYMENTS.
13.
MISCELLANEOUS.
(A)
GOVERNING LAW.
ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, APPLICATION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT WILL BE
GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAW PROVISION OR RULE,
7
WHETHER OF THE STATE OF MINNESOTA OR ANY OTHER JURISDICTION, THAT WOULD CAUSE
THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF MINNESOTA.
(B)
JURISDICTION AND VENUE.
EMPLOYEE AND THE COMPANY CONSENT TO
JURISDICTION OF THE COURTS OF THE STATE OF MINNESOTA AND/OR THE FEDERAL DISTRICT
COURTS, DISTRICT OF MINNESOTA, FOR THE PURPOSE OF RESOLVING ALL ISSUES OF LAW,
EQUITY, OR FACT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(C)
ENTIRE AGREEMENT.
THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF
THE PARTIES RELATING TO EMPLOYEE'S EMPLOYMENT WITH THE COMPANY AND SUPERSEDES
ALL PRIOR AGREEMENTS AND UNDERSTANDINGS WITH RESPECT TO SUCH SUBJECT MATTER, AND
THE PARTIES HERETO HAVE MADE NO AGREEMENTS, REPRESENTATIONS OR WARRANTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT THAT ARE NOT SET FORTH HEREIN.
(D)
AMENDMENTS.
NO AMENDMENT OR MODIFICATION OF THIS AGREEMENT WILL BE
DEEMED EFFECTIVE UNLESS MADE IN WRITING AND