Certain Change in Control Payments Contract Clauses (12)

Certain Change in Control Payments. Notwithstanding any provision of this Agreement to the contrary, if any payments or benefits Executive would receive from the Company under this Agreement or otherwise in connection with the Change in Control (the "Total Payments") (a) constitute "parachute payments" within the meaning of Section 280G of the Code, and (b) but for this Section 14, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive will be entitled to receive either i) the full amount of the Tot...al Payments or ii) a portion of the Total Payments having a value equal to $1 less than three (3) times such individual's "base amount" (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of i) and ii), after taking into account applicable federal, state, and local income taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by such Executive on an after­tax basis, of the greatest portion of the Total Payments. Any determination required under this Section 14 shall be made in writing by the accountant or tax counsel selected by the Executive. If there is a reduction pursuant to this Section 14 of the Total Payments to be delivered to the applicable Executive and to the extent that an ordering of the reduction other than by the Executive is required by Section 9 or other tax requirements, the payment reduction contemplated by the preceding sentence shall be implemented by determining the "Parachute Payment Ratio" (as defined below) for each "parachute payment" and then reducing the "parachute payments" in order beginning with the "parachute payment" with the highest Parachute Payment Ratio. For "parachute payments" with the same Parachute Payment Ratio, such "parachute payments" shall be reduced based on the time of payment of such "parachute payments," with amounts having later payment dates being reduced first. For "parachute payments" with the same Parachute Payment Ratio and the same time of payment, such "parachute payments" shall be reduced on a pro rata basis (but not below zero) prior to reducing "parachute payments" with a lower Parachute Payment Ratio. For purposes hereof, the term "Parachute Payment Ratio" shall mean a fraction the numerator of which is the value of the applicable "parachute payment" for purposes of Section 280G of the Code and the denominator of which is the actual present value of such payment. 9 15. GOVERNING LAW; INTERPRETATION OF THE AGREEMENT; ARBITRATION. This Agreement shall be construed and interpreted in accordance with the laws of the State of Illinois (without giving effect to the choice of law principles thereof). Executive and the Company acknowledge that each party had an equal opportunity to review and/or modify the provisions set forth in this Agreement. Thus, in the event of any misunderstanding, ambiguity or dispute concerning this Agreement's provisions or their interpretation, no rule of construction shall be applied that would result in having this Agreement interpreted against either party. The language of all parts in this Agreement shall be construed as a whole, according to fair meaning, and not strictly for or against any party. The headings provided in boldface are inserted for the convenience of the parties and shall not be construed to limit or modify the text of this Agreement. The Parties agree that any disputes concerning, relating to, or arising out of this Agreement or its interpretation, Executive's employment with or termination from the Company, or any other dispute between the Parties (except as excluded pursuant to this Section), shall be resolved by arbitration in accordance with the Company's arbitration policy as may be in effect from time to time. Notwithstanding the foregoing, Executive and the Company understand and agree that nothing shall prevent the Company from seeking and obtaining injunctive relief in federal or state court (or any court corresponding to Executive's residence) in the event of a breach or threatened breach of any of Executive's obligations under Section 7 of this Agreement. View More