the Executive
preceding the taxable year of the Executive in which the Executive's date of
termination occurs (adjusted for any increase during that year that was expected
to continue indefinitely if the Executive had not had a date of termination);
provided that amounts paid under this sentence will count toward, and will not
be in addition to, the total payment amount required to be made to the Executive
by the Company under paragraph 5(d) or 6(a) above.
(b)
To the maximum extent permitted under Code Section 409A and Treas.
Reg. §1.409A-1(b)(9)(v)(D) (or any similar or successor provisions), within ten
(10)-days of the date of termination, the Company will pay the Executive an
amount equal to the applicable dollar amount under Code Section 402(g)(1)(B) for
the year in which the date of termination occurs; provided that the amount paid
under this sentence will count toward, and will not be in addition to, the total
payment amount required to be made to the Executive by the Company under
paragraph 5(d) or 6(a).
11
(c)
In the event that the Company's independent registered public
accounting firm or the Internal Revenue Service determines that any payment,
coverage or benefit due or owing to the Executive pursuant to this Agreement is
subject to the excise tax imposed by Code Section 409A or any successor
provision thereof or any interest or penalties, including interest imposed under
Code Section 409(A)(1)(B)(i)(I), incurred by the Executive as a result of the
application of such provision, the Company agrees to cooperate with Executive to
execute any amendment to the provisions hereof reasonably necessary but only (i)
to the minimum extent necessary to avoid application of such tax and (ii) to the
extent that the Company would not, as a result, suffer any adverse consequences
(including, without limitation, accelerating the payment or provision of any
benefit described herein).
FOR PURPOSES OF THIS AGREEMENT, "SPECIFIED EMPLOYEE" HAS THE MEANING GIVEN THAT
TERM IN CODE SECTION 409A AND TREAS. REG. 1.409A-1(C)(I) (OR ANY SIMILAR OR
SUCCESSOR PROVISIONS).
THE COMPANY'S "SPECIFIED EMPLOYEE IDENTIFICATION DATE"
(AS DESCRIBED IN TREAS. REG. 1.409A-1(C)(I)(3)) WILL BE DECEMBER 31 OF EACH
YEAR, AND THE COMPANY'S "SPECIFIED EMPLOYEE EFFECTIVE DATE" (AS DESCRIBED IN
TREAS. REG. 1.409A-1(C)(I)(4) OR ANY SIMILAR OR SUCCESSOR PROVISIONS) WILL BE
FEBRUARY 1 OF EACH SUCCEEDING YEAR.
10.
MISCELLANEOUS.
(A)
ASSIGNMENT; SUCCESSORS.
THIS AGREEMENT WILL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE HEIRS AND REPRESENTATIVES OF EXECUTIVE AND THE
ASSIGNS AND SUCCESSORS OF THE COMPANY, BUT NEITHER THIS AGREEMENT NOR ANY RIGHTS
HEREUNDER WILL BE ASSIGNABLE OR OTHERWISE SUBJECT TO HYPOTHECATION BY EXECUTIVE
(EXCEPT BY WILL OR BY OPERATION OF THE LAWS OF INTESTATE SUCCESSION) OR BY THE
COMPANY, EXCEPT THAT THE COMPANY MAY ASSIGN THIS AGREEMENT TO ANY SUCCESSOR
(WHETHER BY MERGER, PURCHASE OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE
STOCK, ASSETS OR BUSINESSES OF THE COMPANY.
(B)
INTERPRETATION AND FORUM FOR DISPUTES.
THE LAWS OF THE STATE OF
ILLINOIS WILL GOVERN THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE
OF THIS