EXHIBIT 10.y
CHANGE IN CONTROL AGREEMENT
AGREEMENT made as of this 3rd day of January, 2000 by and between MTS
Systems Corporation, a Minnesota corporation ("MTS") and Kathleen M. Staby (the
"Executive").
WHEREAS, MTS considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of MTS and its shareholders; and
WHEREAS, the Executive has made and is expected to make, due to
Executive's intimate knowledge of the business and affairs of MTS, its policies,
methods, personnel and problems, a significant contribution to the
profitability, growth and financial strength of MTS; and
WHEREAS, MTS, as a publicly held corporation, recognizes that the
possibility of a Change in Control may exist and that such possibility, and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of the Executive in the performance of the Executive's
duties to the detriment of MTS and its shareholders; and
WHEREAS, Executive is becoming employed by MTS upon the understanding
that MTS will provide income security if the Executive's employment is
terminated under certain terms and conditions; and
WHEREAS, it is in the best interests of MTS and its stockholders to
reinforce and encourage the continued attention and dedication of management
personnel, including Executive, to their assigned duties without distraction and
to ensure the continued availability to MTS of the Executive in the event of a
Change in Control;
THEREFORE, in consideration of the foregoing and other respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof
and shall continue in effect until the earlier of (A) the date that any and all
benefits due to Executive under this Agreement upon the happening of the events
set forth herein have been paid and satisfied and all obligations of MTS to the
Executive have been performed or (B) the date the Executive and MTS agree in
writing to terminate this Agreement. Notwithstanding the preceding sentence, if
a Change in Control occurs, this Agreement shall remain in effect for a period
of 36 months from the date of the occurrence of a Change in Control.
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Page 2
2. Change in Control. If a Change in Control shall have occurred during
the term of this Agreement, the provisions of this Agreement shall become
operative and MTS agrees to employ the Executive and to provide the benefits
stated in this Agreement.
(a) Change in Control, shall, for purposes of this Agreement,
means a change in control of MTS which would be required to be reported
in response to Item 1 of Form 8-K promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), whether or not
MTS is then subject to such reporting requirement, including, without
limitation, if:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act, including any affiliate
or associate as defined in Rule 12(b)-2 under the Exchange Act
of such person, other than MTS, any trustee or other fiduciary
holding securities under an employee benefit plan of MTS, or
any corporation owned, directly or indirectly, by the
stockholders of MTS in substantially the same proportions as
their ownership of stock of MTS) becomes a "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of MTS representing 35% or more of
the combined voting power of MTS' then outstanding securities;
or
(ii) the Board of Directors is comprised of fewer
than 65% of the individuals described in subsection (b) below;
or
(iii) the stockholders of MTS approve a definitive
agreement to merge or consolidate MTS with or into another
corporation or other enterprise in which the holders of
outstanding stock of MTS entitled to vote in elections of
directors immediately before such merger or consolidation hold
less than 80% of the voting power of the survivor of such
merger or consolidation or its parent, or approve a plan of
liquidation; or
(iv) at least 60% of MTS' assets are sold and
transferred to another corporation or other enterprise that is
not a subsidiary, direct or indirect, or other affiliate of
MTS; or
(v) the Board of Directors of MTS determines, by a
vote of a majority of its entire membership, that a tender
offer statement by any person (as defined above) indicates an
intention on the part of such person to acquire control of
MTS.
(b) Board of Directors shall, for purposes of subsection (a),
mean:
(i) individuals who on the date hereof constituted
the Board of MTS, and
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(ii) any new director who subsequently was elected or
nominated for election by a majority of the directors who held
such office immediately prior to a Change in Control.
(c) Friendly Change in Control shall mean a Change in Control
which arises from a transaction or series of transactions authorized,
recommended or approved at the time by formal action of the Board of
Directors.
(d) Unfriendly Change in Control shall mean a Change in
Control that is not a "Friendly Change in Control" as defined above. An
Unfriendly Change in Control shall not thereafter become a Friendly
Change in Control.
3. Termination by Reason of Death or Disability. If Executive's
employment shall be terminated by MTS by reason of death or disability, MTS
shall immediately commence payment to the Executive (or Executive's designated
beneficiaries or estate, if no beneficiary is designated) of any and all
benefits to which the Executive is entitled under MTS retirement and insurance
programs them in effect. Except for such benefits, MTS shall have no further
obligations to Executive under this Agreement.
4. Termination for Cause.
(a) If Executive's employment with MTS shall be terminated by
MTS for Cause as defined below, MTS shall pay to Executive his or her
full base salary through the Date of Termination at the rate in effect
at the time Notice of Termination is given and MTS shall have no
further obligation to Executive under this Agreement.
(b) Termination by MTS of Executive's employment for "Cause"
shall mean termination as a result of:
(i) the conviction of the Executive by a court of
competent jurisdiction for felony criminal conduct; or
(ii) willful gross misconduct or gross negligence in
the performance of his duties by the Executive; or
(iii) material violation by the Executive of any
employment agreement applicable to the Executive.
5. Termination Following Friendly Change in Control.
(a) If, after a Friendly Change in Control, Executive's
employment with MTS shall be terminated (1) by MTS other than for
cause, death or disability or (2) by Executive for Good Reason, then
Executive shall be entitled to the following benefits:
(i) Severance. MTS shall pay the Executive as a
severance payment (the "Severance Payment") an amount equal to
the product of 18 multiplied by the Executive's Monthly Gross
Income as defined below. The
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Severance Payment shall be made in a single lump sum within 30
days after the Date of Termination, subject to all applicable
federal and state withholding.
For purposes of this Agreement, Monthly Gross Income shall
mean the sum of the following amounts:
(A) 1/12 of the highest average base salary
for any 12-consecutive month period during the 36
calendar month period ending immediately prior to the
Date of Termination (without taking into account any
reduction in such base salary that would constitute
Good Reason); plus
(B) the monthly average of the total
Management Variable Compensation (MVC) earned during
the lesser of the 3 most recent or the actual number
of fiscal years participating in the MVC plan ending
immediately prior to the Date of Termination; plus
(C) the product of the average percentage of
MTS profit sharing contributions to the MTS Systems
Corporation Profit Sharing Retirement Plan and Trust
(as a percent of Compensation as defined in the Plan
up to the federal limit) for the lesser of the 3 most
recent or the actual number of participating Plan
Years ending immediately prior to the Date of
Termination multiplied by the sum of (A) and (B)
above.
(ii) Benefits. For an 18-month period after the Date
of Termination, MTS shall continue to pay its portion of
Executive's life and health insurance benefits which the
Executive is receiving immediately prior to the Notice of
Termination. Executive shall be responsible for payment of his
or her portion of the premiums for such benefits. The MTS
portion and the Executive's portion shall be the respective
percentages of such premiums paid immediately prior to the
Date of Termination. Benefits otherwise receivable by
Executive pursuant to this paragraph shall be reduced to the
extent comparable benefits are actually received by Executive
during this period, and any such benefits actually received by
Executive shall be reported to MTS. At the expiration of said
18-month period, Executive shall be entitled to continue any
of said benefits which qualify as group insurance benefits for
continuation coverage under the Comprehensive Omnibus
Reconciliation Act ("COBRA") or applicable state law.
(b) Good Reason. Executive shall be entitled to terminate his
or her employment for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean, without Executive's express written consent,
any of the following:
(i) the assignment to Executive of any duties
inconsistent with Executive's status or position with MTS, or
a substantial alteration in the nature or status of
Executive's responsibilities; or
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(ii) a reduction by MTS in Executive's annual base
salary other than a reduction comparable to other senior
Executives of MTS in connection with a company-wide cost
reduction program; or
(iii) the relocation of MTS' principal executive
offices to a location more than fifty miles from Eden Prairie,
Minnesota or MTS requiring Executive to be based anywhere
other than MTS' principal executive offices except for
required travel on MTS' business to an extent substantially
consistent with Executive's prior business travel obligations;
or
(iv) the failure by MTS to continue to provide
Executive with benefits at least as favorable to those enjoyed
by Executive under any of MTS' pension, life insurance,
medical, health and accident, disability, deferred
compensation, incentive awards, incentive stock options, or
savings plans in which Executive was participating at the time
of the Change in Control, the taking of any action by MTS
which would directly or indirectly materially reduce any of
such benefits or deprive Executive of any material fringe
benefit enjoyed by him or her at the time of the Change in
Control, or the failure by MTS to provide Executive with the
number of paid vacation days to which Executive is entitled at
the time of the Change in Control, provided, however, that MTS
may amend any such plan or programs as long as such amendments
do not reduce any benefits to which Executive would be
entitled upon termination; or
(v) the failure of MTS to obtain a satisfactory
agreement from any successor to assume and agree to perform
this Agreement, as contemplated in Section 12; or
(vi) MTS requests Executive's resignation from
employment; or
(vii) any purported termination of Executive's
employment which is not made pursuant to a Notice of
Termination satisfying the requirements of this Agreement; for
purposes of this Agreement, no such purported termination
shall be effective; or
(viii) any material violation by MTS of this
Agreement.
(c) Voluntary Termination Deemed Good Reason. Notwithstanding
anything herein to the contrary, during the period commencing on the
30th day following a Change in Control (whether Friendly or Unfriendly)
and ending on the 180th day following a Change in Control, Executive
may voluntarily terminate his or her employment for any reason, and
such termination shall be deemed "Good Reason" for all purposes of this
Agreement.
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6. Termination - Unfriendly Change in Control.
(a) If, after an Unfriendly Change in Control, Executive's
employment with MTS is terminated (1) by MTS other than for Cause,
death or disability, or (2) by Executive for Good Reason, the Executive
shall be entitled to the following benefits:
(i) Severance. MTS shall pay the Executive as a
severance payment (the "Severance Payment") an amount equal to
the product of 36 multiplied by the Executive's Monthly Gross
Income as defined in Section 5(a)(i) above. The Severance
Payment shall be made in a single lump sum within 30 days
after the Date of Termination, subject to all applicable
federal and state withholding.
(ii) Benefits. For a 36-month period after the Date
of Termination, MTS shall continue to pay its portion of
Executive's life and health insurance benefits which the
Executive is receiving immediately prior to the Notice of
Termination. Executive shall be responsible for payment of his
or her portion of the premiums for such benefits. The MTS
portion and the Executive's portion shall be the responsive
percentages of such premiums paid immediately prior to the
Date of Termination. Benefits otherwise receivable by
Executive pursuant to this paragraph shall be reduced to the
extent comparable benefits are actually received by Executive
shall be reported to MTS. At the expiration of said 36-month
period, Executive shall be entitled to continue any of said
benefits which qualify as group insurance benefits for
continuation coverage under the Comprehensive Omnibus Budget
Reconciliation Act ("COBRA") or applicable state law.
(b) If the Executive voluntarily terminates his or her
employment other than for Good Reason but more than 180 days after an
Unfriendly Change in Control, Executive shall be entitled to the
following benefits:
(i) Severance. MTS shall pay to Executive as a
severance payment (the "Severance Payment") an amount equal to
the product of 18 multiplied by the Executive's monthly Gross
Income as defined in Section 5(a)(i) above. The Severance
Payment shall be made in a single lump sum within 30 days
after the Date of Termination, subject to all applicable
federal and state withholding.
(ii) Benefits. For 18-month period after the Date of
Termination, MTS shall continue to pay its portion of
Executive's life and health insurance benefits which the
Executive is receiving immediately prior to the Notice of
Termination. Executive shall be responsible for payment of his
or her portion of the premiums for such benefits. The MTS
portion and the Executive's portion shall be the respective
percentages of such premiums paid immediately prior to the
Date of Termination. Benefits otherwise receivable by
Executive pursuant to this paragraph shall be reduced to the
extent comparable benefits are actually received by Executive
during such period,
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and any such benefits actually received by Executive shall be
reported to MTS. At the expiration of said 18-month period,
Executive shall be entitled to continue any of said benefits
which qualify as group insurance benefits for continuation
coverage under the Comprehensive Omnibus Budget Reconciliation
Act ("COBRA") or applicable state law.
7. Additional Benefits. In addition to all other amounts payable and
benefits receivable to Executive upon termination of employment covered under
this Agreement, Executive shall be entitled to the following benefits:
(a) Legal Fees. In the event of any termination of employment
under this Agreement, other than termination for Cause, MTS shall pay
to Executive all legal fees and expenses reasonably incurred by
Executive in contesting or disputing any such termination or in seeking
to obtain or enforce any right or benefit provided by this Agreement.
(b) Retirement Plan. Executive shall, upon termination of
employment, be entitled to receive all benefits payable to the
Executive under the MTS Systems Corporation Profit Sharing Retirement
Plan and any other plan or agreement relating to retirement benefits.
(c) Employee Stock Option Certificate. The Executive's rights
under any existing Employee Stock Option Agreement and any future such
agreements, including particularly his or her right to exercise his or
her option rights following his or her termination of employment, shall
continue to be fully effective hereunder.
8. No Mitigation. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced by any compensation earned by Executive as the result
of employment by another employer or by retirement benefits after the Date of
Termination, or except as otherwise provided in this Agreement.
9. Potential Excise Tax; Indemnification
(a) Excise Tax. Should any payments hereunder or contemplated
hereby be subject to excise tax pursuant to Section 4999 of the
Internal Revenue Code of 1986, as may be amended, or any successor or
similar provision thereto, or comparable state or local tax laws, MTS
shall pay to the Executive such additional compensation as is necessary
(after taking into account all federal, state and local income taxes
payable by the Executive as a result of the receipt of such
compensation) to place the Executive in the same after-tax position he
would have been in had no such excise tax (or any interest or penalties
thereon) been paid or incurred. MTS shall pay such additional
compensation upon the earlier of:
(i) the time at which MTS withholds such excise tax
from any payments to the Executive; or
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(ii) 30 days after the Executive notifies MTS that
the Executive has paid such excise tax pursuant to a tax
return filed by the Executive which takes the position that
such excise tax is due and payable in reliance on a written
opinion of the Executive's tax counsel that it is more likely
than not that such excise tax is due and payable, or, if
later, the date the IRS notifies Executive that such amount is
due and payable.
Without limiting the obligation of MTS hereunder, the Executive agrees,
in the event the Executive makes any payment pursuant to the preceding
sentence, to negotiate with MTS in good faith with respect to
procedures reasonably requested by MTS which would afford MTS the
ability to contest the imposition of such excise tax; provided,
however, that the Executive will not be required to afford MTS any
right to contest the applicability of any such excise tax to the extent
that the Executive reasonably determines that such contest is
inconsistent with the overall tax interests of the Executive.
MTS agrees to hold in confidence and not to disclose, without the
Executive's prior written consent, any information with regard to the
Executive's tax position which MTS obtains pursuant to this subsection.
(b) Indemnification. MTS will indemnify the Executive (and his
or her legal representative or other successors) to the fullest extent
permitted (including payment of expenses in advance of final
disposition of the proceeding) by the laws of the State of Minnesota,
as in effect at the time of the subject act or omission, or the
Articles of Incorporation and By-Laws of MTS as in effect at such time
or on the date of this Agreement, whichever affords or afforded greater
protection to the Executive; and the Executive shall be entitled to the
protection of any insurance policies MTS may elect to maintain
generally for the benefit of its directors and officers, against all
costs, charges and expenses whatsoever incurred or sustained by him or
her legal representatives in connection with any action, suit or
proceeding to which he (or his or her legal representative or other
successors) may be made a party by reason of his or her being or having
been a director, officer or employee of MTS or any of its subsidiaries
or his or her serving or having served any other enterprise as a
director, officer or employee at the request of MTS, provided that MTS
shall cause to be maintained in effect for not less than six years from
the date of a Change in Control (to the extent available) policies of
directors' and officers' liability insurance of at least the same
coverage as those maintained by MTS on the date of this Agreement and
containing terms and conditions which are no less advantageous than
such policies.
10. Non-Competition and Confidentiality.
(a) Noncompetition. Except as provided in subsection (c)
below, Executive agrees that, as a condition of receiving benefits
under this Agreement, he will not render services directly or
indirectly to any competing organization, wherever located, for a
period of one year following the Date of Termination, in connection
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with the design, implementation, development, manufacture, marketing,
sale, merchandising, leasing, servicing or promotion of any
"Conflicting Product" which as used herein means any product, process,
system or service of any person, firm, corporation, organization other
than MTS, in existence or under development, which is the same as or
similar to or competes with, or has a usage allied to, a product,
process, system, or service produced, developed, or used by MTS.
Executive agrees that violation of this covenant not to compete with
MTS shall result in immediate cessation of all benefits hereunder,
other than insurance benefits, which Executive may continue where
permitted under federal and state law at his or her own expense.
(b) Confidentiality. Executive further agrees and
acknowledges his or her existing obligation that at all times during
and subsequent to his or her employment with MTS, he will not divulge
or appropriate to his or her own use or the uses of others any secret
or confidential information or knowledge pertaining to the business of
MTS, or any of its subsidiaries, obtained during his or her employment
by MTS or any of its subsidiaries.
(c) Waiver - Unfriendly Change in Control. Notwithstanding
anything herein to the contrary: the restriction on competition under
subsection (a) shall not apply if the Executive's employment terminates
following an Unfriendly Change in Control. Furthermore, in such event,
MTS waives any other restriction on Executive's employment and consents
unconditionally to any employment Executive may subsequently obtain.
11. Funding of Payments. In order to assure the performance of MTS or
its successor of its obligations under this Agreement, MTS may deposit in a
so-called "rabbi" trust an amount equal to the maximum payment that will be due
the Executive under the terms hereof; provided, however, that MTS shall deposit
in trust the amount equal to the maximum payment due Executive immediately upon
an Unfriendly Change in Control. Under such written trust instrument, the
Trustee shall be instructed to pay to the Executive (or the Executive's legal
representative, as the case may be) the amount to which the Executive shall be
entitled under the terms hereof, and the balance, if any, of the trust not so
paid or reserved for payment shall be repaid to MTS. If MTS deposits funds in
trust, payment shall be made no later than the occurrence of a Change in
Control. The written instrument governing the trust shall be irrevocable from
and after such Change in Control and shall contain such provisions protective of
the Executive as are contained in similar trust agreements approved by the
Internal Revenue Service in published private letter rulings (provided that the
assets of the trust shall be reachable by creditors of MTS as required by such
rulings). The trustee shall be a national bank selected by MTS with the consent
of the Executive, with trust powers and whose principal officers are located in
the Minneapolis/St. Paul metropolitan area. The trustee shall invest the assets
of the trust in any readily marketable securities of U.S. corporations (other
than MTS, its successor, or any affiliate of MTS or its successor). If and to
the extent there are not amounts in trust sufficient to pay Executive under this
Agreement, MTS shall remain liable for any and all payments due to Executive.
12. Successors; Binding Agreement.
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(a) Successors. MTS will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of MTS to expressly
assume and agree to perform this Agreement in the same manner and to
the same extent that MTS would be required to perform it if no such
succession had taken place. Failure of MTS to obtain such assumption
and agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Executive to
compensation from MTS in the same amount and on the same terms as he
would be entitled hereunder if he terminated his or her employment for
Good Reason following a Change in Control, except that for purposes of
implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination.
(b) Binding Agreement. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal
representatives, successors, heirs, and designated beneficiaries. If
Executive should die while any amount would still be payable to
Executive hereunder if the Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's designated
beneficiaries or, if there is no such designated beneficiary, to the
Executive's estate.
13. Notice.
(a) Form and Delivery. All notices and other communications
provided for in the Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage
prepaid, addressed to the last known residence address of the Executive
or in the case of MTS, to its principal office to the attention of each
of the then directors of MTS with a copy to its Secretary, or to such
other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
(b) Notice of Termination. Any purported termination of
Executive's employment by MTS or by Executive shall be communicated by
written Notice of Termination to the other party hereto, which shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth the facts and circumstances claimed to provide
a basis for termination of Executive's employment.
(c) Date of Termination. For purposes of this Agreement, "Date
of Termination" shall mean the date specified in the Notice of
Termination which shall not be less than 10 nor more than 30 days,
respectively, from the date such Notice of Termination is given.
(d) Dispute of Termination. If, within 10 days after any
Notice of Termination is given, the party receiving such Notice of
Termination notifies the other party that a dispute exists concerning
the termination, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written
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agreement of the parties, or by a final judgment, order or decree of a
court of competent jurisdiction (which is not appealable or the time
for appeal therefrom having expired and no appeal having been
perfected); provided, that the Date of Termination shall be extended by
a notice of dispute only if such notice is given in good faith and the
party giving such notice pursues the resolution of such dispute with
reasonable diligence in accordance with Section 14 below.
Notwithstanding the pendency of any such dispute, MTS shall continue to
pay Executive full compensation in effect when the notice giving rise
to the dispute was given (including, but not limited to, base salary)
and continue Executive as a participant in all compensation, benefit
and insurance plans in which the Executive was participating when the
notice giving rise to the dispute was given, until the dispute is
finally resolved in accordance with this subsection or at the end of a
period of 180 days, whichever first occurs. Amounts paid under this
subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts
under this Agreement.
14. Arbitration. Any dispute arising under or in connection with this
Agreement (including without limitation, the making of this Agreement or the
Executive's termination of employment) shall be resolved by final and binding
arbitration to be held in Minneapolis, Minnesota in accordance with the rules
and procedures of the American Arbitration Association. The parties shall select
a mutually acceptable single arbitrator to resolve the dispute or if they fail
or are unable to do so, each side shall within the following ten business days
select a single arbitrator and the two so selected shall select a third
arbitrator within the following ten business days. The arbitrator shall have no
power to award any punitive or exemplary damages. The arbitrator may construe or
interpret, but shall not ignore or vary the terms of this Agreement, and shall
be bound by controlling law. The arbitration award or other resolution may be
entered as a judgment at the request of the prevailing party by any court of
competent jurisdiction in Minnesota or elsewhere.
15. Miscellaneous.
(a) Modification and Waiver. Except as otherwise specifically
provided in this Agreement, no provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing and signed by the parties. No waiver
by either party hereto at any time of any breach by the other party to
this Agreement of, or compliance with, any other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or similar time.
(b) Entire Agreement. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth
in this Agreement.
(c) Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the
State of Minnesota.
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(d) Severability. The invalidity or unenforceability or any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
IN WITNESS WHEREOF, MTS, through its authorized officer, and the
Executive have executed this Agreement as of the day and date first above
written.
EXECUTIVE: MTS SYSTEMS CORPORATION
/s/ Kathleen M. Staby By /s/ Sidney W. Emery, Jr.
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Kathleen M. Staby
Its Chairman and CEO
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