PAYMENT OR BENEFIT SHALL BE DETERMINED BY THE ACCOUNTANTS IN ACCORDANCE WITH THE
PRINCIPLES OF SECTION 280G OF THE CODE.
6.
AT-WILL EMPLOYMENT.
NOTWITHSTANDING THIS AGREEMENT, EXECUTIVE'S
RELATIONSHIP WITH THE COMPANY CONTINUES TO BE AN AT-WILL EMPLOYMENT
RELATIONSHIP.
THE COMPANY OR EXECUTIVE HAS THE RIGHT TO TERMINATE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY AT ANY TIME WITH OR WITHOUT CAUSE AND WITH OR
WITHOUT NOTICE.
NOTHING IN THIS AGREEMENT CONFERS UPON THE EXECUTIVE ANY RIGHT
TO CONTINUE IN THE EMPLOY OF THE COMPANY PRIOR TO, OR AFTER A CHANGE OF CONTROL
OF THE COMPANY OR IN ANY WAY LIMITS THE RIGHTS OF THE COMPANY, EXCEPT AS
EXPRESSLY STATED HEREIN, TO DISCHARGE THE EXECUTIVE AT ANY TIME PRIOR TO, OR
AFTER THE DATE OF A CHANGE OF CONTROL OF THE COMPANY FOR ANY REASON WHATSOEVER,
WITH OR WITHOUT CAUSE.
7.
RIGHTS APPLY ONLY ON CHANGE OF CONTROL.
THE RIGHTS GRANTED UNDER
THIS CHANGE OF CONTROL AGREEMENT ONLY APPLY UPON A CHANGE OF CONTROL AND
SUBSEQUENT TERMINATION, AND SUPERSEDE THE SEVERANCE OR OTHER SIMILAR RIGHTS
ACCRUING UPON A CHANGE OF CONTROL AND SUBSEQUENT TERMINATION UNDER ANY OTHER
AGREEMENTS; PROVIDED HOWEVER, THAT THIS CHANGE OF CONTROL AGREEMENT SHALL NOT
AMEND, MODIFY OR SUPERSEDE IN ANY WAY THAT SEVERANCE AND NON-COMPETITION
AGREEMENT DATED AS OF FEBRUARY 3, 2009 BETWEEN THE COMPANY AND THE EXECUTIVE.
8.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN ILLINOIS, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES.
9.
HEADINGS; SEVERABILITY.
THE SECTION HEADINGS OF THIS AGREEMENT
ARE FOR REFERENCE ONLY AND ARE TO BE GIVEN NO EFFECT IN THE CONSTRUCTION OR
INTERPRETATION OF THIS AGREEMENT.
IF ANY PART OR PROVISION OF THIS AGREEMENT
SHALL BE DECLARED INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION,
SAID PROVISION OR PART SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH INVALIDITY OR
UNENFORCEABILITY ONLY, WITHOUT IN ANY WAY AFFECTING THE REMAINING PARTS OR
PROVISIONS OF THIS AGREEMENT.
10.
WAIVER.
ANY PARTY MAY WAIVE COMPLIANCE BY ANOTHER PARTY WITH ANY
OF THE PROVISIONS OF THIS AGREEMENT.
NO WAIVER OF ANY PROVISION SHALL BE
CONSTRUED AS A WAIVER OF ANY OTHER PROVISION.
ANY WAIVER MUST BE IN WRITING.
11.
BINDING EFFECT; ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING ON
AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND
PERMITTED ASSIGNS.
NOTHING IN THIS AGREEMENT SHALL CREATE OR BE DEEMED TO
CREATE ANY THIRD PARTY BENEFICIARY RIGHTS IN ANY PERSON OR ENTITY (INCLUDING ANY
EXECUTIVE OR PERSON ENGAGED BY THE COMPANY IN ANY CAPACITY) NOT A PARTY TO THIS
AGREEMENT.
THE COMPANY WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT,
BY MERGER, PURCHASE, CONSOLIDATION OR OTHERWISE) OF THE COMPANY TO MAKE AN
EXPRESS ASSUMPTION OF
7
THE OBLIGATIONS HEREUNDER AND CAUSE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT,
BY MERGER, PURCHASE, CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF
THE BUSINESS AND/OR ASSETS OF THE COMPANY TO AGREE TO PERFORM ALL