Box 158
Gary, SD 57237
Facsimile No.: (605) 272-5402
With copy to:
Fabyanske, Westra, Hart & Thomson P.A.
800 LaSalle Avenue
Suite 1900
Minneapolis, MN 55402
Attn: Scott L. Anderson
Facsimile No.: (612) 359-7602
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If to Fagen:
Fagen, Inc.
501 West Highway 212
P.O. Box 159
Granite Falls, MN 56241
Attn: Ron Fagen
Facsimile No.: (320) 564-3278
If to Yarano:
Daniel A. Yarano
c/o Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402
Facsimile No.: (605) 272-5402
Each party shall provide notice to the other party of any change in address.
5.7
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN,
WITHOUT REGARD TO THE CONFLICTS OF LAWS RULES OR PROVISIONS.
5.8
FORUM; SERVICE OF PROCESS.
ANY LEGAL SUIT,
ACTION OR PROCEEDING BROUGHT BY THE COMPANY, PURCHASERS, ANY OTHER HOLDERS, ANY
PERSON ENTITLED TO INDEMNIFICATION OR CONTRIBUTION HEREUNDER, OR ANY OF THEIR
RESPECTIVE AFFILIATES ARISING OUT OF OR BASED UPON THIS AGREEMENT SHALL BE
INSTITUTED EXCLUSIVELY IN ANY FEDERAL OR STATE COURT IN THE STATE OF WISCONSIN,
AND EACH SUCH PERSON IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OR ANY SUCH PROCEEDING, AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
5.9
CAPTIONS.
THE CAPTIONS, HEADINGS AND
ARRANGEMENTS USED IN THIS AGREEMENT ARE FOR CONVENIENCE ONLY AND DO NOT IN ANY
WAY LIMIT OR AMPLIFY THE TERMS AND PROVISIONS HEREOF.
5.10
NO PREJUDICE.
THE TERMS OF THIS AGREEMENT SHALL
NOT BE CONSTRUED IN FAVOR OF OR AGAINST ANY PARTY ON ACCOUNT OF ITS
PARTICIPATION IN THE PREPARATION HEREOF.
5.11
WORDS IN SINGULAR AND PLURAL FORM.
WORDS USED IN
THE SINGULAR FORM IN THIS AGREEMENT SHALL BE DEEMED TO IMPORT THE PLURAL, AND
VICE VERSA, AS THE SENSE MAY REQUIRE.
5.12
REMEDY FOR BREACH.
THE COMPANY HEREBY
ACKNOWLEDGES THAT IN THE EVENT OF ANY BREACH OR THREATENED BREACH BY THE COMPANY
OF ANY OF THE PROVISIONS OF THIS AGREEMENT, THE HOLDERS WOULD HAVE NO ADEQUATE
REMEDY AT LAW AND COULD SUFFER SUBSTANTIAL AND IRREPARABLE DAMAGE.
ACCORDINGLY,
THE COMPANY HEREBY AGREES THAT, IN SUCH EVENT, THE HOLDERS SHALL BE ENTITLED,
AND NOTWITHSTANDING ANY ELECTION BY ANY HOLDER TO CLAIM DAMAGES, TO OBTAIN A
TEMPORARY AND/OR PERMANENT INJUNCTION TO RESTRAIN ANY SUCH BREACH OR THREATENED
BREACH OR TO
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OBTAIN SPECIFIC PERFORMANCE OF ANY SUCH PROVISIONS, ALL WITHOUT PREJUDICE TO ANY
AND ALL OTHER REMEDIES WHICH ANY HOLDERS MAY HAVE AT LAW OR IN EQUITY.
5.13
SUCCESSORS AND ASSIGNS, THIRD PARTY
BENEFICIARIES.
THIS AGREEMENT AND ALL OF THE PROVISIONS HEREOF SHALL BE BINDING
UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO, EACH ASSIGNEE OF THE
HOLDERS PURSUANT TO ARTICLE 3 AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND
EXECUTORS, ADMINISTRATORS AND HEIRS.
HOLDERS ARE INTENDED THIRD PARTY
BENEFICIARIES OF THIS AGREEMENT AND THIS AGREEMENT MAY BE ENFORCED BY SUCH
HOLDERS.
5.14
ENTIRE AGREEMENT.
THIS AGREEMENT SETS FORTH THE