BE DEEMED A WAIVER BY SUCH PARTY OF ANY SUBSEQUENT BREACH. CONTINUATION OF
PAYMENTS HEREUNDER BY THE COMPANY FOLLOWING A BREACH BY EXECUTIVE OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT PRECLUDE THE COMPANY FROM THEREAFTER
TERMINATING SAID PAYMENTS BASED UPON THE SAME VIOLATION.
15.
SEVERABILITY. IT IS MUTUALLY AGREED AND
UNDERSTOOD BY THE PARTIES THAT SHOULD ANY OF THE AGREEMENTS AND COVENANTS
CONTAINED HEREIN BE DETERMINED BY ANY COURT OF COMPETENT
11
JURISDICTION TO BE INVALID BY VIRTUE OF BEING VAGUE OR UNREASONABLE, INCLUDING
BUT NOT LIMITED TO THE PROVISIONS OF SECTIONS 6 OR 7, THEN THE PARTIES HERETO
CONSENT THAT THIS AGREEMENT SHALL BE AMENDED RETROACTIVE TO THE DATE OF ITS
EXECUTION TO INCLUDE THE TERMS AND CONDITIONS SAID COURT DEEMS TO BE REASONABLE
AND IN CONFORMITY WITH THE ORIGINAL INTENT OF THE PARTIES AND THE PARTIES HERETO
CONSENT THAT UNDER SUCH CIRCUMSTANCES, SAID COURT SHALL HAVE THE POWER AND
AUTHORITY TO DETERMINE WHAT IS REASONABLE AND IN CONFORMITY WITH THE ORIGINAL
INTENT OF THE PARTIES TO THE EXTENT THAT SAID COVENANTS AND/OR AGREEMENTS ARE
ENFORCEABLE.
16.
PREVAILING PARTY. IN THE EVENT OF ANY
ACTION, PROCEEDING OR LITIGATION (COLLECTIVELY, THE "ACTION") BETWEEN THE
PARTIES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, THE PREVAILING PARTY IN
SUCH ACTION, SHALL BE ENTITLED TO RECOVER, IN ADDITION TO ANY DAMAGES,
INJUNCTIONS, OR OTHER RELIEF AND WITHOUT REGARD TO WHETHER THE ACTION IS
PROSECUTED TO FINAL APPEAL, ALL OF ITS COSTS AND EXPENSES INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEY'S FEES, FROM THE NON-PREVAILING PARTY. TO THE
EXTENT ANY PAYMENTS MADE TO EXECUTIVE UNDER THIS SECTION 16 ARE TAXABLE TO
EXECUTIVE, SUCH PAYMENTS WILL BE MADE NO LATER THAN DECEMBER 31 OF THE YEAR
FOLLOWING THE YEAR IN WHICH THE COSTS AND EXPENSES WERE INCURRED BY EXECUTIVE.
17.
APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES.
18.
AMENDMENT. THIS AGREEMENT MAY BE AMENDED OR
CANCELLED BY MUTUAL AGREEMENT OF THE PARTIES IN WRITING WITHOUT THE CONSENT OF
ANY OTHER PERSON. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF THE
PARTIES DETERMINE THAT AMENDMENTS OF THIS AGREEMENT ARE NECESSARY OR DESIRABLE
TO CONFORM THIS AGREEMENT TO THE REQUIREMENTS OF SECTION 409A OF THE CODE,
PROPOSED OR FINAL TREASURY REGULATIONS OR OTHER GUIDANCE OF GENERAL
APPLICABILITY ISSUED THEREUNDER, THE PARTIES WILL USE GOOD FAITH EFFORTS TO MAKE
AMENDMENTS TO THE AGREEMENT TO CONFORM THE AGREEMENT TO SECTION 409A WHILE
PRESERVING THE BENEFIT OF THE AGREEMENT TO ALL PARTIES; PROVIDED, HOWEVER, THAT
EXECUTIVE IS NOT UNDER ANY OBLIGATION TO AGREE TO ANY SUCH AMENDMENT AND THE
COMPANY SHALL NOT BE OBLIGATED TO CONSENT TO ANY AMENDMENT THAT WOULD INCREASE
THE COST OF THE AGREEMENT TO THE COMPANY; PROVIDED, HOWEVER, THAT THE COMPANY'S
CONSENT TO SUCH AMENDMENTS SHALL NOT BE UNREASONABLY WITHHELD WHERE THE COST OF
SUCH AMENDMENT IS PRINCIPALLY ADMINISTRATIVE AND NO ADDITIONAL BENEFITS ARE
CONFERRED ON EXECUTIVE OTHER THAN TO CAUSE THE AGREEMENT TO CONFORM TO THE