FORCE AND EFFECT.
(G)
ASSIGNMENT.
THE EXECUTIVE MAY NOT UNDER ANY CIRCUMSTANCES
DELEGATE ANY OF HIS RIGHTS AND OBLIGATIONS HEREUNDER WITHOUT FIRST OBTAINING THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
THIS AGREEMENT AND ALL OF THE COMPANY'S
RIGHTS AND OBLIGATIONS HEREUNDER MAY BE ASSIGNED OR TRANSFERRED BY IT, IN WHOLE
OR IN PART, TO BE BINDING UPON AND INURE TO THE BENEFIT OF ANY SUBSIDIARY OR
SUCCESSOR OF THE COMPANY, PROVIDED EITHER THE SUCCESSOR HAS A NET WORTH GREATER
THAN THE COMPANY AT THE TIME OF ASSIGNMENT OR THE COMPANY REMAINS PRIMARILY
LIABLE WITH RESPECT TO THE OBLIGATIONS SO ASSIGNED.
(H)
COSTS OF ENFORCEMENT, LITIGATION.
IN THE EVENT OF ANY SUIT OR
PROCEEDING SEEKING TO ENFORCE THE TERMS, COVENANTS, OR CONDITIONS OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL, IN ADDITION TO ALL OTHER REMEDIES AND
RELIEF THAT MAY BE AVAILABLE UNDER THIS AGREEMENT OR APPLICABLE LAW, RECOVER HIS
OR ITS REASONABLE ATTORNEYS' FEES AND COSTS AS SHALL BE DETERMINED AND AWARDED
BY THE COURT.
ANY CONTROVERSY OR DISPUTE WITH RESPECT TO THE TERMS OF SECTION
15, 16, 17, 18 OR 19 OF THIS AGREEMENT WILL SURVIVE TERMINATION OF THIS
AGREEMENT AND SHALL BE LITIGATED IN THE STATE OF FEDERAL COURTS OF COMPETENT
JURISDICTION SITUATED IN MILWAUKEE, WISCONSIN, TO WHICH JURISDICTION AND VENUE
ALL PARTIES CONSENT.
(I)
MITIGATION.
THE EXECUTIVE SHALL NOT BE OBLIGATED TO SEEK OTHER
EMPLOYMENT IN MITIGATION OF THE AMOUNTS PAYABLE UNDER THIS AGREEMENT, AND THE
OBTAINING OF ANY SUCH OTHER EMPLOYMENT SHALL IN NO EVENT EFFECT ANY REDUCTION OF
THE COMPANY'S OBLIGATIONS TO MAKE PAYMENTS HEREUNDER.
NOTWITHSTANDING THE
FOREGOING, IF EXECUTIVE RECEIVES THE PAYMENTS DESCRIBED IN SECTION 10 BY
TERMINATING HIS EMPLOYMENT FOLLOWING A CHANGE IN CONTROL AND EXECUTIVE
SUBSEQUENTLY BECOMES RE-EMPLOYED BY THE COMPANY OR BY THE PARTY OR PARTIES
EFFECTING THE CHANGE IN CONTROL, THE AMOUNTS EARNED ON RE-EMPLOYMENT (UP TO A
PERIOD OF ONE YEAR'S COMPENSATION) SHALL BE REPAID TO THE COMPANY.
21.
EXECUTIVE ACKNOWLEDGEMENT.
THE EXECUTIVE ACKNOWLEDGES THAT:
(A)
THE EXECUTIVE HAS HAD SUFFICIENT TIME TO REVIEW THIS AGREEMENT
THOROUGHLY;
(B)
THE EXECUTIVE HAS READ AND UNDERSTANDS THE TERMS OF THIS AGREEMENT
AND THE OBLIGATIONS HEREUNDER;
(C)
THE EXECUTIVE HAS RECEIVED THE GOOD AND ADEQUATE CONSIDERATION FOR
ENTERING INTO THIS AGREEMENT; AND
(D)
THE EXECUTIVE HAS BEEN GIVEN AN OPPORTUNITY TO OBTAIN INDEPENDENT
LEGAL ADVICE CONCERNING THE INTERPRETATION AND EFFECT OF THIS AGREEMENT.
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IN WITNESS WHEREOF, this Agreement is entered into as of the day and year first
above written.
COMPANY:
MERGE TECHNOLOGIES INCORPORATED
By:
/s/ MICHAEL D. DUNHAM
Michael D. Dunham
Chairman of the Board of Directors
EXECUTIVE:
By:
/s/ KENNETH D. RARDIN
Kenneth D. Rardin
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