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 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
6
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 WITH ANY RIGHT TO CONTINUE IN THE EMPLOY OF
FARGO OR THE SUCCESSOR FOR ANY PERIOD OF SPECIFIC DURATION OR INTERFERE WITH OR
OTHERWISE RESTRICT IN ANY WAY THE EXECUTIVE'S RIGHTS OR THE RIGHTS OF