Exhibit 10.10
Harold W. Milner, President and Chief Executive Officer
Kevin L. Molloy, Senior Vice President, Operations
Michael R. Hinckley, Senior Vice President, Marketing
Steven R. Stenhaug, Senior Vice President, Treasurer
Michael J. Quinn, Senior Vice President, Secretary and General Counsel
The above named individuals have each signed a separate employment
agreement in March 1996. The agreement is as follows:
You are presently an Officer of Kahler Realty Corporation, a Minnesota
corporation (the "Company"). The Company considers the establishment and
maintenance of a sound and vital management to be essential to protecting
and enhancing the best interests of the Company and its stockholders. In
this connection, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a Change in Control (as
defined in Section 1 below) of the Company may arise and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders.
Accordingly, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the
Company's management to their assigned duties without distraction in
circumstances arising from the possibility of a Change in Control of the
Company. In particular, the Board believes it important, should the
Company or its stockholders receive a proposal for transfer of control of
the Company, that you be able to assess and advise the Board whether such
proposal would be in the best interests of the Company and its stockholders
and to take such other action regarding such proposal as the Board might
determine to be appropriate, without being influenced by the uncertainties
of your own personal situation.
In order to induce you to remain in the employ of the Company, this letter
agreement ("Agreement"), which has been approved by the Board, sets forth
the severance benefits which the Company agrees will be provided to you in
the event your employment with the Company is terminated subsequent to a
Change in Control of the Company under the circumstances described below.
This Agreement also provides you with certain benefits following a Change
in Control of the Company regardless of whether your employment by the
Company is terminated.
In consideration of these benefits the Agreement contains a covenant not to
compete (Section 6, below).
1. DEFINITIONS The following terms shall have the meaning set forth
below unless the context clearly requires otherwise. Terms defined
elsewhere in this Agreement shall have the same meaning throughout this
Agreement.
(a) "Cause" shall mean termination upon: (i) the willful and
continued failure by you to perform substantially your duties with the
Company (other than any such failure resulting from your disability or
incapacity due to physical or mental illness) after a demand for
substantial performance is delivered to you by the chairman of the board or
president of the Company which specifically identifies the manner in which
such executive believes that you have not substantially performed your
duties; or (ii) your conviction of willfully engaging in illegal conduct
constituting a felony or gross misdemeanor under federal or Minnesota law
which is materially and demonstrably injurious to the Company. For
purposes of this definition, no act, or failure to act, on your part shall
be considered "willful" unless done, or omitted to be done, by you in bad
faith and without reasonable belief that your action or omission was in, or
not opposed to, the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly adopted by
the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by you in good
faith and in the best interests of the Company. It is also expressly
understood that your attention to matters not directly related to the
business of the Company shall not provide a basis for termination for Cause
so long as the Board has not expressly disapproved in writing of your
engagement in such activities. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause unless and until there
shall have been delivered to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire
membership of the Board at a meeting of the Board called and held for the
purpose (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board), finding that in
the good faith opinion of the Board you were guilty of the conduct set
forth above in clause (i) or (ii) of this definition and specifying the
particulars thereof in detail.
(b) "Change in Control" shall be deemed to have occurred if (i) a
tender offer shall be made and consummated for the ownership of 30% or more
of the outstanding voting securities of the Company, (ii) the Company shall
be merged or consolidated with another corporation and as a result of such
merger or consolidation less than 75% of the outstanding voting securities
of the surviving or resulting corporation shall be owned in the aggregate
by the former shareholders of the Company, other than affiliates (within
the meaning of the Securities Exchange Act of 1934) of any party to such
merger or consolidation, as the same shall have existed immediately prior
to such merger or consolidation, (iii) the Company shall sell substantially
all of its assets to another corporation which is not a wholly owned
subsidiary of the Company, (iv) a person, within the meaning of Section
3(a)(9) or of Section 13(d)(3) (as in effect on the date hereof) of the
Exchange Act, shall acquire 30% or more of the outstanding voting
securities of the Company (whether directly, indirectly, beneficially or of
record) (for purposes hereof, ownership of voting securities shall take
into account and shall include ownership as determined by applying the
provisions of Rule 13d-3(d)(1)(i) (as in effect on the date hereof)
pursuant to the Exchange Act), or (v) individuals who constitute the Board
on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at lease
three-quarters (3/4) of the directors comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for director, without
objection to such nomination) shall be, for purposes of this clause (v),
considered as though such person were a member of the Incumbent Board.
Notwithstanding anything in the foregoing to the contrary, no Change in
Control of the Company shall be deemed to have occurred for purposes of
this Agreement by virtue of any transaction which results in: (vi) you, or
a group of Persons which includes you, acquiring, directly or indirectly
more than fifty percent (50%) of the combined voting power of the Company's
Voting securities, or (vii) you becoming immediately employed by a Person
which leases and/or manages substantially all of the assets of the Company,
providing that the terms of such employment do not constitute a "Good
Reason" termination as defined in Section 1(g) hereof neither when such
employment commences nor at any time during the then remaining term of this
Agreement.
(c) "Company Shares" shall mean shares of the $0.10 par value common
stock of the Company.
(d) "Date of Termination" following a Change in Control of the
Company shall mean: (i) if your employment is to be terminated for
Disability, thirty (30) days after Notice of Termination is given, provided
that you shall not have returned to the performance of your duties on a
full-time basis during such thirty (30)-day period; (ii) if your employment
is to be terminated by the Company for Cause or by you for Good Reason, the
date specified in the Notice of Termination; (iii) if your employment is to
be terminated by the Company for any reason other than Cause, Disability,
death, Retirement or the giving of notice pursuant to Section 3 of this
Agreement, the date specified in the Notice of Termination, which in no
event shall be later than ninety (90) days after the date on which a Notice
of Termination is given, unless an earlier date has been expressly agreed
to by you in writing either in advance of, or after, receiving such Notice
of Termination; (iv) if your employment is to be terminated by the
Company's giving notice of its decision not to extend the term of this
Agreement pursuant to Section 3 hereof, the expiration date of this
Agreement; or (v) if your employment is terminated by reason of death or
Retirement, the date of death or Retirement, respectively. In the case of
termination by the Company of your employment for Cause, if you have not
previously expressly agreed in writing to the termination, then within
thirty (30) days after receipt by you of the Notice of Termination with
respect thereto, you may notify the Company that a dispute exists
concerning the termination, in which event the Date of Termination shall be
the date set either by mutual written agreement of the parties or by the
arbitrators in a proceeding as provided in Section 14. hereof. During the
pendency of any such dispute, the Company will continue to pay you your
full compensation in effect just prior to the time the Notice of
Termination is given and until the dispute is resolved in accordance with
Section 14.
(e) "Disability" shall have the same meaning as defined in the
Company's Long-term disability plan as in effect immediately prior to the
Change in Control of the Company.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Good Reason" shall mean termination based on:
(i) an adverse change in your status or position(s) as an
executive officer of the Company as in effect immediately prior to the
Change in Control of the Company, including, without limitation, any
adverse change in your status or position(s) as a result of a material
diminution in your duties or responsibilities (other than, if applicable,
any such change directly attributable to the fact that the Company is no
longer publicly owned) or the assignment to you of any duties or
responsibilities which, in your reasonable judgment, are inconsistent with
such status or position(s), or any removal of you from or failure to
reappoint or reelect you to such position(s) (except in connection with the
termination of your employment for Cause, Disability or Retirement or as a
result of your death or by you other than for Good Reason);
(ii) a reduction by the Company in your rate of compensation
(or an adverse change in the form or timing of the payment thereof) as in
effect immediately prior to the Change in Control of the Company;
(iii) the failure by the Company to continue in effect any Plan
in which you are participating at the time of the Change in Control of the
Company (or Plans providing you with at least substantially similar
benefits) other than as a result of normal expiration of any such Plan in
accordance with its terms as in effect at the time of the Change in Control
of the Company, or the taking of any action, or the failure to act, by the
Company which would adversely affect your continued participation in any of
such Plans on at least as favorable a basis to you as is the case on the
date of the Change in Control of the Company or which would materially
reduce your benefits in the future under any of such Plans or deprive you
of any material benefit enjoyed by you at the time of the Change in Control
in the Company;
(iv) the Company's requiring you to be based anywhere other
than the environs of the municipality where your office is located
immediately prior to the Change in Control of the Company, except for
required travel on the Company's business, and then only to the extent
substantially consistent with the business travel obligations which you
undertook on behalf of the Company prior to the Change in Control of the
Company;
(v) the failure by the Company to obtain from any Successor the
assent to this Agreement contemplated by Section 7 hereof;
(vi) any purported termination by the Company of your
employment which is not properly effected pursuant to a Notice of
Termination and pursuant to any other requirements of this Agreement. For
purposes of this Agreement, no such purported termination shall be
effective; or
(vii) any refusal by the Company to continue to allow you to
attend to matters or engage in activities not directly related to the
business of the Company which, prior to the Change in Control of the
Company, you were not expressly prohibited in writing by the Board from
attending to or engaging in.
(h) "Notice of Termination" shall mean a written notice which shall
state the specific termination provision in this Agreement relied upon.
Any purported termination by the Company or by you following a Change in
Control of the Company shall be communicated by written Notice of
Termination to the other party hereto.
(i) "Person" shall mean and include any individual, corporation,
partnership, group, association or other "person", as such term is used in
Section 14(d) of the Exchange Act, other than the Company, a wholly-owned
subsidiary of the Company or any employee benefit plan(s) sponsored by the
Company or a wholly-owned subsidiary of the Company.
(j) "Plan" shall mean any compensation plan (such as an incentive
stock option or restricted stock plan) or any employee benefit plan (such
as a thrift, pension, profit sharing, medical, disability, accident, life
insurance or relocation plan or policy) or any other plan, program, policy
or agreement of the Company intended to benefit employees generally,
management employees as a group or you in particular (including, without
limitation, the Retirement Plans, plans for annual physical examinations,
plans for the payment of financial and legal advice, the Disability Plan
and the Death Benefit Plan), now in existence or becoming effective
hereafter during the term of this Agreement.
(k) "Retirement" shall mean termination on or after your normal or
early retirement date under the terms of the Company's Retirement Plan (or
any successor or substitute Plan or Plans of the Company put into effect
prior to a Change in Control of the Company).
(l) "Successor" shall mean any Person that succeeds to, or has the
practical ability to control (either immediately or with the passage of
time), the Company's business directly, by merger, consolidation or other
form of business combination, or indirectly, by purchase of the Company's
Voting Securities, all or substantially all of its assets or otherwise.
(m) "Voting Securities" shall mean securities of the Company
ordinarily having the right to vote at elections of directors, including,
without limitation, Company Shares.
2. AGREEMENT TO PROVIDE SERVICES; RIGHT TO TERMINATE. You agree to
remain in the employ of the Company during the term of this Agreement
unless you terminate your employment because of death, Disability or
Retirement or your termination is for Good Reason following a Change in
Control of the Company. The Company may terminate your employment as
herein provided, subject to the Company's providing the benefits
hereinafter specified in accordance with the terms hereof. Upon the
expiration of the term of this Agreement as provided in Section 3 hereof,
your employment by the Company under this Agreement shall be terminated.
3. TERM OF AGREEMENT. This Agreement shall commence on the date hereof
and shall continue in effect until December 31, 1997; provided, however,
that commencing on January 1, 1998 and each January 1 thereafter, the term
of this Agreement shall automatically be extended for one (1) additional
year unless at least ninety (90) days prior to such January 1st date, the
Company or you shall have given notice that this Agreement shall not be
extended; and provided, further that this Agreement shall continue in
effect for a period of twenty-four (24) months beyond the termination date
of the term then in effect if a Change in Control of the Company shall have
occurred during such term.
4. BENEFITS UPON A CHANGE IN CONTROL.
(a) WELFARE PLANS. Following a Change in Control of the Company,
unless and until your employment by the Company is terminated for Cause,
Disability or Retirement or you terminate your employment by the Company
other than for Good Reason, the Company shall maintain in full force and
effect, for the continued benefit of you and your dependents for a period
terminating on the earliest of (i) three (3) years after the Date of
Termination or (ii) the commencement date of equivalent benefits from a new
employer, all insured and self-insured employee welfare benefit Plans
(including, without limitation, group health, death, dental and disability
plans) in which you were entitled to participate immediately prior to the
Change in Control of the Company, provided that your continued
participation is possible under the general terms and provisions of such
Plans (and any applicable funding media) and provided that you continue to
pay an amount equal to your regular contribution under such Plans for such
participation. If, at the end of three (3) years after the Termination
Date, you have not reached your normal retirement date and you have not
previously received or are not then receiving equivalent benefits from a
new employer, the Company shall arrange at your sole cost and expense, to
enable you to convert your and your dependents' coverage under such Plans
to individual policies or programs upon the same terms as employees of the
Company may apply for such conversions. In the event that your
participation in any such Plan is barred, the Company, at your sole cost
and expense, shall arrange to have issued for the benefit of you and your
dependants individual policies of insurance providing benefits
substantially similar (on a federal, state and local income and employment
after-tax basis) to those which you otherwise would have been entitled to
receive under such Plans pursuant to this paragraph (a) or, if such
insurance is not available at a reasonable cost to the Company, the Company
shall otherwise provide you and your dependents equivalent benefits (on a
federal, state and local income and employment after-tax basis). You shall
not be required to pay any premiums or other charges in an amount greater
than that which you would have paid in order to participate in such Plans.
(b) INDEMNIFICATION Following a Change in Control of the Company,
the Company shall indemnify and advance expenses to you to the full extent
permitted by law and the Company's Bylaws (and, subject to applicable law,
at least to the extent set forth in the terms and conditions of that
certain Indemnification Agreement, dated February 17, 1993, between you and
the Company) for expenses (including, without limitation, judgments, fines,
penalties, settlements and reasonable legal fees) incurred in connection
with your service to or status with the Company or any other corporation,
employee benefit plan or other entity with whom you served at the express
written request of the Company.
(c) STOCK OPTIONS AND COMPANY SHARES
(i) "Stock Options" Following a Change in Control of the
Company at your option from time to time (exercisable upon written notice
to the Company) for a period terminating ninety (90) days following the
expiration of the term of this Agreement pursuant to Section 3 hereof, or,
if earlier, on the date the option expires, the Company shall purchase from
you any or all outstanding and unexercised options, regardless of whether
such options are then exercisable according to their terms, granted to you
under the terms of the Company's Incentive Stock Option Agreement, as
amended, the Company's 1987 Stock Option Plan, as amended, the Company's
1982 Stock Option Plan, as amended, and the Company's 1994 Stock Option
Plan, as amended, or any stock option plan adopted after the date of this
Agreement at a price equal to the excess, if any, of (i) the highest
closing price of a Company Share as reported by the NASDAQ National Market
on any of the fifteen (15) trading days immediately preceding or
immediately succeeding the Change in Control of the Company over (ii) the
purchase or exercise price of the option.
(ii) "Company Shares" Following a Change in Control of the
Company at your option from time to time (exercisable upon written notice
to the Company) for a period terminating seven (7) months following the
Change in Control of the Company, the Company shall purchase from you any
or all Company Shares owned of record or beneficially by you (or the
corresponding shares of any Successor received by you in exchange or
substitution for such Company Shares) at a price equal to the highest
closing price of a Company Share as reported by the NASDAQ National Market
on any of the fifteen (15) trading days immediately preceding or
immediately succeeding the Change in Control of the Company (or the
economic equivalent thereof in the case of such Successor shares).
(d) COMPENSATION AND OTHER BENEFITS Following a Change in Control of
the Company, your compensation and all benefit levels shall not be
decreased during the term of this Agreement. You shall be deemed to be a
participant in any management incentive plan applicable to the Company to
the extent that you would have participated had there been no Change in
Control of the Company.
5. BENEFITS UPON TERMINATION OF EMPLOYMENT
(a) DISABILITY, DEATH OR RETIREMENT. During any period following a
Change in Control of the Company that you fail to perform your duties as a
result of incapacity due to physical or mental illness, you shall continue
to receive your compensation at the times, in the form and at the rate then
in effect, and any benefits or awards under any and all Plans shall
continue to accrue during such period to the extent not inconsistent with
such Plans, until your employment is terminated on account of Disability
pursuant to and in accordance with the terms hereof. Thereafter, your
benefits shall be determined in accordance with the Plans (as in effect
immediately prior to a Change in Control of the Company) and as provided in
accordance with this Agreement. If your Death or Retirement occurs after a
Change in Control of the Company but prior to a termination of your
employment, you or your beneficiary (as provided under the applicable
Plans) shall receive all benefits or awards (including, without limitation,
both the cash and stock components) under any and all Plans as in effect
immediately prior to the Change in Control of the Company, and all benefits
to which you or your beneficiary may be entitled under the terms of this
Agreement.
(b) CAUSE. If your employment by the Company shall be terminated for
Cause following a Change in Control of the Company, the Company shall pay
you your compensation through the Date of Termination at the times, in the
form and at the rate in effect just prior to the time a Notice of
Termination is given plus any benefits or awards (including, without
limitation, both the cash and stock components) which pursuant to the terms
of any and all Plans have been earned or become payable, but which have not
yet been paid to you. Thereupon, except as otherwise provided in this
Agreement, the Company shall have no further obligations to you under this
Agreement.
(c) CHANGE IN CONTROL TERMINATION. If after a Change in Control of
the Company shall have occurred your employment by the Company shall be
terminated by the Company other than for Cause or because the term of this
Agreement shall have expired pursuant to Section 3 hereof or shall be
terminated by you for Good Reason, then you shall be entitled without
regard to any contrary provisions of any Plan, to the benefits as provided
below:
(i) COMPENSATION. Within five (5) business days following the
Date of Termination or the expiration of the term of this Agreement as set
forth in Section 3 hereof, the Company shall pay your compensation through
such Date of Termination or expiration in the form and at the rate in
effect just prior to the time a Notice of Termination is given or this
Agreement expires plus any benefits or awards (including, without
limitation, both the cash and stock components) which pursuant to the terms
of any and all Plans have been earned or become payable, but which have not
yet been paid to you.
(ii) OUTPLACEMENT SERVICE. The Company shall pay or reimburse
you for the costs, fees and expenses of reasonable outplacement assistance
services.
(iii) SEVERANCE. If your termination occurs under this Section
5(c) within twenty-four (24) months following a Change in Control of the
Company, then within five (5) business days following the Date of
Termination, as severance pay and in lieu of any further salary for periods
subsequent to the Date of Termination, the Company shall pay to you an
amount in cash equal to one (1) times your highest annual base salary and
the greater of the highest annual bonus earned with the Company within the
three (3)-year period prior to the termination of employment or fifty
percent (50%) of the said highest annual base salary.
(d) NO SETOFF. The amount of any payment provided for in this
Section 5 shall not be reduced, offset or subject to recovery by the
Company by reason of any compensation earned by you as the result of
employment by another employer after the Date of Termination or otherwise.
(e) DEFERRAL ELECTION. Upon entering into this Agreement and for a
period of fourteen (14) business days following each anniversary of the
date hereof, you may, in writing, direct the Company that any amounts which
should become payable to you pursuant to Section 5 hereof shall be paid to
you in three (3) equal installments (together with interest as provided
below) with the first such installment payable within five (5) business
days of the Date of Termination and each successive installment paid on the
anniversary of the Date of Termination. Such a deferred payment election,
once made, cannot be revoked. Notwithstanding anything in the foregoing to
the contrary, such a deferred payment election shall be automatically
revoked should you terminate your employment under the circumstances
described in Section 6 below. Any payments deferred under this Section
5(e) shall bear interest commencing on the date the payment would have been
made but for such deferred payment election until the date paid at an
annual rate of interest (compounded annually) equal from time to time (and
redetermined on the first (1st) business day of each calendar year) to four
(4) percentage points over the average rate for the twelve (12) calendar
months preceding the beginning of each calendar year of Moody's Corporate
Bond Yield Average - Monthly Average Corporates as published by Moody's
Investor's Service or any successor thereto, or if such rate is no longer
published, a substantially similar average to be mutually agreed upon by
the Board and you.
6. NON-COMPETITION. You and the Company recognize that your services to
the Company are special and unique and that your compensation and other
benefits are partly in consideration of and conditioned upon your not
competing with the Company or its subsidiaries, and that a covenant on your
part not to compete during the term of your employment and during a period
of twelve (12) full calendar months thereafter is essential to protect the
business and goodwill of the Company. Accordingly, you agree that during
the term of your employment with the Company or any of its affiliates and
for a period of twelve (12) full calendar months following your termination
of employment for any reason, you shall not, directly or indirectly, alone
or as a partner, officer, director, shareholder or employee of any other
firm or entity, engage in any commercial activity in competition with any
substantial part of the Company's business as conducted during the term of
the Agreement or as of the Date of Termination of your employment or with
any substantial part of the Company's contemplated business. For purposes
of this Section 6, "shareholder" shall not include beneficial ownership of
less than five percent (5%) of the combined voting power of all issued and
outstanding voting securities of a publicly held corporation whose stock is
traded on a major stock exchange or quoted on NASDAQ. You agree that the
services you render to the Company are unique and of extraordinary
character; that the Company has agreed to enter into this Agreement and to
compensate you in the manner provided for herein relying on that fact; that
this covenant not to compete is of the essence of this Agreement and that
in the event of a breach or threatened breach of the provisions of the
covenant not to compete the Company would suffer irreparable damage for
which there is no adequate remedy at law since damages would not be readily
determinable. Accordingly, in the event of a breach or a threatened breach
by you of this covenant, the Company shall be entitled to a temporary
restraining order and an injunction restraining you from any such breach
issued by a court of competent jurisdiction notwithstanding the provisions
of Section 14 hereof.
7. SUCCESSORS; BINDING AGREEMENTS.
(a) Upon your written request, the Company will seek to have any
Successor by agreement in form and substance satisfactory to you, assent to
the fulfillment by the Company of the Company's obligations under this
Agreement. Failure of the Company to obtain such assent at least three (3)
business days prior to the time a Person becomes a Successor (or where the
Company does not have at least three (3) business days advance notice that
a Person may become a successor, within one(1) business day after having
notice that such Person may become or has become a Successor) shall
constitute Good Reason for termination by you of your employment and, if a
Change in Control of the Company has occurred, shall entitle you
immediately to the benefits provided hereunder upon delivery by you of
Notice of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable
by you, your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you should die
while any amount would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there be no such designee, to
your estate.
(c) For purposes of this Agreement, the "Company" shall include any
corporation or other entity which is the surviving or continuing entity in
respect of any merger, consolidation or other form of business combination
in which the Company ceases to exist.
8. FEES AND EXPENSES; MITIGATION.
(a) The Company shall pay all reasonable legal fees and related
expenses incurred by you in connection with this Agreement following a
Change in Control of the Company, including, without limitation: (i) all
such fees and expenses, if any, incurred in contesting or disputing any
such termination; or (ii) your seeking to obtain or enforce any right or
benefit provided by this Agreement; provided, however, you shall be
required to repay any such amounts to the Company to the extent that a
court issues a formal and non-appealable order setting forth the
determination that the position taken by you was frivolous or advanced by
you in bad faith.
(b) You shall not be required to mitigate the amount of any payment
the Company becomes obligated to make to you in connection with this
Agreement by seeking other employment or otherwise.
9. TAXES.
(a) All payments to be made to you under this Agreement will be
subject to required withholding of federal, state and local income and
employment taxes.
(b) Notwithstanding anything in this Agreement to the contrary, if
any of the payments or benefits provided for in this Agreement, together
with any other payments which you have the right to receive from the
Company as a result of a change 11 ownership, or from any corporation which
is a member of an affiliated group (as defined in Section 1504(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), without regard to
Section 1504(b) of the Code) of which the Company is a member, constitute
an "excess parachute payment" (as defined in Section 280G(b) of the Code),
the payments pursuant to this Agreement shall be "Grossed-up" pursuant to
the following calculation:
(Excess Parachute Payments + Gross up) = Excess Parachute Payments x
1; divided by (1-X) where X = the federal tax rate in effect pursuant to
#4999 of the Code at the time of termination as defined in this Agreement
and shall be increased for any state excise tax which may be applicable
with respect to the excess parachute payments made by the Company.
The determination as to whether any increase in the payments under
this Agreement pursuant to this paragraph (b) is necessary shall be made by
you in good faith, an such determination shall be conclusive and binding
upon the Company. The increased payments required under this paragraph (b)
shall be promptly paid to you upon written demand therefor.
10. SURVIVAL. The respective obligations of, and benefits afforded to,
the Company and you as provided in Sections 4,5,6,7(b), 8, 9, 14 and 15 of
this Agreement shall survive termination of this Agreement and shall remain
in full force and effect according to their terms.
11. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in or required under this Agreement shall be in
writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States certified or registered mail,
return receipt requested, postage prepaid and addressed to each party's
respective address set forth on the first page of this Agreement (provided
that all notices to the Company shall be directed to the attention of the
chairman of the board or president of the Company, with a copy to the
secretary of the Company), 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.
12. MISCELLANEOUS. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is
agreed to in a writing signed by you and the chairman of the board or
president of the Company, provided, however, if you occupy those positions
at the time, such writings shall be signed by another officer of the
Company at the direction of the Board of Directors. No waiver by either
party hereto at any time of any breach by the other party hereto of, or of
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. 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.
This Agreement and the legal relations among the parties as to all matters,
including, without limitation, matters of validity, interpretation,
construction, performance and remedies, shall be governed by and construed
in accordance with the internal laws of the State of Minnesota. Headings
are for purpose of convenience only and do not constitute a part of this
agreement. The parties hereto agree to perform, or cause to be performed,
such further acts and deeds and shall execute and deliver, or cause to be
executed and delivered, such additional or supplemental documents or
instruments as may be reasonably required by the other party to carry into
effect the intent and purpose of this Agreement.
13. VALIDITY. The invalidity or unenforceability of 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.
14. ARBITRATION. Any claim you make for benefits under Section 5 of this
Agreement shall initially be handled in accordance with the claim procedure
of the Company's Retirement Plan which is hereby incorporated by this
reference. If the claim is not resolved under that claim procedure, it
shall be settled by arbitration as provided in this Section. Any dispute
or controversy arising under or in connection with this Agreement shall be
settled exclusively by arbitration in Minneapolis, Minnesota by three (3)
arbitrators in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrators'
award in any court having jurisdiction; provided, however, that you shall
be entitled to seek specific performance either in a court of competent
jurisdiction or by arbitration (as determined by you) of your right to be
paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement. The
Company shall bear all costs and expenses arising in connection with any
arbitration proceeding pursuant to this Section 14.
15. RELATED AGREEMENTS. To the extent that any provision of any other
Plan or agreement between the Company or any of its subsidiaries and you
shall limit, qualify or be inconsistent with any provision of this
Agreement, then for purposes of this Agreement, while the same shall remain
in force, the provision of this Agreement shall control and such provision
of such other Plan agreement shall be deemed to have been superseded, and
to be of no force or effect, as if such other agreement had been formally
amended to the extent necessary to accomplish such purpose.
16. COUNTERPARTS. This Agreement may be executed in several
counterparts, each which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this
letter which will then constitute our agreement on this subject.
Sincerely,
KAHLER REALTY CORPORATION
By:
Name:
Title:
Agreed to this day of , 19 .