RESIDENCE IN THE SALT LAKE CITY, PARK CITY, UTAH AREA NOT TO EXCEED $2,500 PER
CALENDAR MONTH
(I)
RETENTION. THIS AGREEMENT SHALL NOT IN
ANYWAY LIMIT OR REDUCE THE OBLIGATIONS OF THE COMPANY WITH RESPECT TO THE
EXECUTIVE AND/OR THE EXECUTIVE'S RIGHTS WITH RESPECT TO THE COMPANY SET FORTH IN
THE RETENTION MEMORANDUM DATED JUNE 11, 2001 (THE "RETENTION LETTER"), WHICH
RETENTION LETTER IS ANNEXED HERETO AS EXHIBIT "A".
NOTWITHSTANDING THE
PREVIOUS SENTENCE AND FOR THE AVOIDANCE OF DOUBT: (A) THE TERM "CAUSE" AS USED
IN SAID RETENTION LETTER SHALL HAVE THE MEANING ASCRIBED TO SUCH TERM IN SECTION
4(B) HEREOF, (B) THE PHRASE "CURRENT BASE SALARY" SHALL MEAN $180,000, (C) THE
PROVISIONS OF SECTION 10(B) AND (C) OF THIS AGREEMENT SHALL APPLY TO THE
RETENTION LETTER AS IF SUCH PROVISIONS WERE CONTAINED THEREIN AND (D)
TERMINATION OF THIS AGREEMENT BY THE EXECUTIVE FOR GOOD REASON, BY THE COMPANY
WITHOUT CAUSE OR FOLLOWING THE DEATH OR DISABILITY OF THE EXECUTIVE SHALL EACH
CONSTITUTE "INVOLUNTARY TERMINATION, OTHER THAN FOR CAUSE" FOR PURPOSES OF THE
RETENTION LETTER.
4
4.
TERMINATION AND SEVERANCE.
(A)
DEATH OR DISABILITY.
THE TERM SHALL
TERMINATE IMMEDIATELY UPON THE EXECUTIVE'S DEATH OR, UPON THIRTY (30) DAYS PRIOR
WRITTEN NOTICE BY THE COMPANY, IN THE CASE OF A DETERMINATION OF THE EXECUTIVE'S
DISABILITY.
AS USED HEREIN THE TERM "DISABILITY" MEANS THE EXECUTIVE'S
INABILITY TO PERFORM HIS DUTIES AND RESPONSIBILITIES UNDER THIS AGREEMENT FOR A
PERIOD OF MORE THAN 120 CONSECUTIVE DAYS, OR FOR MORE THAN 180 DAYS, WHETHER OR
NOT CONTINUOUS, DURING ANY 365-DAY PERIOD, DUE TO PHYSICAL OR MENTAL INCAPACITY
OR IMPAIRMENT.
A DETERMINATION OF DISABILITY WILL BE MADE BY A PHYSICIAN
REASONABLY SATISFACTORY TO BOTH THE EXECUTIVE AND THE COMPANY AND PAID FOR BY
THE COMPANY WHOSE DECISION SHALL BE FINAL AND BINDING ON THE EXECUTIVE AND THE
COMPANY; PROVIDED THAT IF THE PARTIES CANNOT AGREE AS TO A PHYSICIAN, THEN EACH
SHALL SELECT AND PAY FOR A PHYSICIAN AND THESE TWO TOGETHER SHALL SELECT A THIRD
PHYSICIAN WHOSE FEE SHALL BE BORNE EQUALLY BY THE EXECUTIVE AND THE COMPANY AND
WHOSE DETERMINATION OF DISABILITY SHALL BE BINDING ON THE EXECUTIVE AND THE
COMPANY.
If the Term is terminated upon the Executive's death or Disability, the Company
shall pay to the Executive's estate or the Executive, as the case may be, a lump
sum payment equal to (i) the Executive's Base Salary through such termination
date, (ii) a pro rata portion of the Executive's Annual Bonus with respect to
the fiscal year in which the termination occurred plus (iii) any accrued but
unpaid vacation through the date of such termination.
(B)
TERMINATION FOR CAUSE.
THE TERM MAY BE
TERMINATED BY THE COMPANY UPON NOTICE (AS SET FORTH IN THIS SECTION 4(B)) TO THE
EXECUTIVE UPON THE OCCURRENCE OF ANY EVENT CONSTITUTING "CAUSE" AS DEFINED
BELOW.
IF THE TERM IS TERMINATED BY THE COMPANY FOR CAUSE, THE COMPANY WILL PAY
THE EXECUTIVE AN AGGREGATE AMOUNT EQUAL TO THE EXECUTIVE'S ACCRUED AND UNPAID
BASE SALARY AND VACATION PAY