COMPANY.
COMPANY EXPRESSLY
DENIES THAT IT IS IN ANY WAY LIABLE TO EMPLOYEE OR THAT IT HAS ENGAGED IN ANY
WRONGDOING WITH RESPECT TO EMPLOYEE.
9.
ANNOUNCEMENTS.
EMPLOYEE SHALL BE ENTITLED TO REASONABLE INPUT
REGARDING INTERNAL AND EXTERNAL ANNOUNCEMENTS REGARDING THE SUBJECT MATTER OF
THIS AGREEMENT.
10.
EMPLOYEE ACKNOWLEDGEMENTS.
EMPLOYEE ACKNOWLEDGES AND REPRESENTS
THAT THIS AGREEMENT MEMORIALIZES THE TERMS AND CONDITIONS AGREED TO BY AND
BETWEEN COMPANY AND EMPLOYEE ON DECEMBER 31, 2007.
EMPLOYEE FURTHER
ACKNOWLEDGES AND REPRESENTS THAT:
(A) HE HAS READ THIS AGREEMENT AND
UNDERSTANDS ITS CONSEQUENCES; (B) HE HAS RECEIVED ADEQUATE OPPORTUNITY TO READ
AND CONSIDER THIS AGREEMENT; (C) HE HAS DETERMINED TO EXECUTE THIS AGREEMENT OF
HIS OWN FREE WILL AND ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY STATEMENTS OR
7
EXPLANATIONS MADE BY COMPANY REGARDING THIS AGREEMENT; (D) THE PROMISES OF
COMPANY MADE IN THIS AGREEMENT CONSTITUTE FAIR AND ADEQUATE CONSIDERATION FOR
THE PROMISES, RELEASES AND AGREEMENTS MADE BY EMPLOYEE IN THIS AGREEMENT;
(E) THE VESTED STOCK OPTIONS WHICH ARE "INCENTIVE STOCK OPTIONS," AS THAT TERM
IS USED IN SECTION 422 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, WHICH
ARE BEING EXTENDED AS PROVIDED IN SECTION 3.E. WILL BECOME NONQUALIFIED STOCK
OPTIONS THAT ARE NOT INCENTIVE STOCK OPTIONS; AND (F) COMPANY WILL BE REQUIRED
TO DISCLOSE THE TERMS OF THIS AGREEMENT IN A CURRENT REPORT ON FORM 8-K TO BE
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC") AND TO FILE A COPY OF
THIS AGREEMENT WITH THE SEC.
11.
ENTIRE AGREEMENT.
UNLESS OTHERWISE SET FORTH HEREIN, THIS
AGREEMENT, INCLUDING ANY SCHEDULES ATTACHED HERETO OR DOCUMENTS EXPRESSLY
REFERRED TO HEREIN CONTAINS THE ENTIRE AGREEMENT BETWEEN COMPANY AND EMPLOYEE
AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SUPERSEDES AND CANCELS ANY AND ALL
OTHER AGREEMENTS, ARRANGEMENTS AND UNDERSTANDINGS, WHETHER ORAL OR IN WRITING,
BETWEEN COMPANY AND EMPLOYEE WITH RESPECT TO THE TERMS AND CONDITIONS OF HIS
EMPLOYMENT WITH COMPANY AND THE TERMINATION OF HIS EMPLOYMENT.
THIS AGREEMENT
DOES NOT SUPERSEDE, CANCEL OR OTHERWISE VOID SECTION 3.5 OF THE
EMPLOYMENT AGREEMENT ENTITLED "WORKS MADE FOR HIRE," WHICH SHALL REMAIN IN FULL
FORCE AND EFFECT.
12.
TERMINATION CLAUSE.
EXCEPT AS PROVIDED IN SECTION 11 OF THIS
AGREEMENT, THE EMPLOYMENT AGREEMENT AND CHANGE IN CONTROL AGREEMENT TERMINATE
EFFECTIVE THE SEPARATION DATE.
13.
MITIGATION.
EMPLOYEE SHALL NOT BE REQUIRED TO MITIGATE THE AMOUNT
OF ANY PAYMENTS OR BENEFITS COMPANY IS REQUIRED TO MAKE OR PROVIDE IN CONNECTION
WITH THIS AGREEMENT BY SEEKING OTHER EMPLOYMENT OR OTHERWISE.
14.
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA.
ALL ACTIONS REGARDING THIS
AGREEMENT SHALL BE BROUGHT IN A STATE OR FEDERAL COURT WITHIN THE STATE OF
MINNESOTA.
15.
EFFECTIVE DATE.
THIS AGREEMENT WAS ORIGINALLY OFFERED TO EMPLOYEE
ON OR ABOUT JANUARY 6, 2008.
EMPLOYEE SHALL HAVE UNTIL THE CLOSE OF BUSINESS ON
JANUARY 27, 2008 TO ACCEPT THIS AGREEMENT.
IF EMPLOYEE DESIRES TO ACCEPT THIS
AGREEMENT, EMPLOYEE SHALL EXECUTE THE AGREEMENT AND RETURN THE SAME TO COMPANY
AT THE