THEN COMPRISING THE INCUMBENT
BOARD SHALL BE CONSIDERED AS THOUGH SUCH INDIVIDUAL WERE A MEMBER OF THE
INCUMBENT BOARD, BUT EXCLUDING, FOR THIS PURPOSE, ANY SUCH INDIVIDUAL WHOSE
INITIAL ASSUMPTION OF OFFICE OCCURS AS A RESULT OF EITHER AN ACTUAL OR
THREATENED ELECTION CONTEST (AS SUCH TERMS ARE USED IN RULE 14A-11 OF REGULATION
14A PROMULGATED UNDER THE EXCHANGE ACT) OR OTHER ACTUAL OR THREATENED
SOLICITATION OF PROXIES OR CONSENTS BY OR ON BEHALF OF A PERSON OTHER THAN THE
BOARD; OR
(III)
APPROVAL BY THE STOCKHOLDERS OF THE COMPANY
OF A COMPLETE LIQUIDATION OR DISSOLUTION OF THE COMPANY OR THE SALE OR OTHER
DISPOSITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY.
SECTION 4.4
TERMINATION BY THE COMPANY WITHOUT CAUSE, BY THE
EXECUTIVE AS THE RESULT OF A CONSTRUCTIVE TERMINATION, OR BY THE EXECUTIVE DUE
TO A BREACH OF AGREEMENT BY THE COMPANY.
IF EXECUTIVE'S EMPLOYMENT HEREUNDER IS
TERMINATED BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE AS THE RESULT OF A
CONSTRUCTIVE TERMINATION, IN EITHER CASE OTHER THAN WITHIN 24 MONTHS FOLLOWING A
CHANGE OF CONTROL, OR BY THE EXECUTIVE PURSUANT TO THE PROVISIONS SET FORTH IN
SECTION 2.3(A) HEREOF PRIOR TO THE EXPIRATION OF THE THEN CURRENT EMPLOYMENT
TERM OF THIS AGREEMENT, THE EXECUTIVE SHALL BE ENTITLED TO THE FOLLOWING:
(I)
ANY ACCRUED AMOUNTS; AND
(II)
SEVERANCE BENEFITS (AS DEFINED BELOW) FOR
A PERIOD OF TIME EQUAL TO THE LONGER OF (X) TWO YEARS AND (Y) THE PERIOD OF TIME
REMAINING UNDER THE THEN EMPLOYMENT TERM (SUCH LONGER PERIOD, THE "SEVERANCE
PERIOD").
(III)
EXECUTIVE SHALL CONTINUE TO PARTICIPATE IN
ANY BENEFITS REFERENCED IN SECTION 3.2(B) FOR THE SEVERANCE PERIOD; PROVIDED,
HOWEVER, TO THE EXTENT THAT ANY BENEFIT UNDER SECTION 3.2(B) CANNOT BE CONTINUED
DURING A PERIOD WHEN EXECUTIVE IS NOT AN EMPLOYEE OF THE COMPANY, THE COMPANY
SHALL PAY EXECUTIVE AN AMOUNT IN CASH EQUAL TO THE ECONOMIC VALUE OF SUCH
BENEFIT, SUCH VALUE TO BE DETERMINED AS OF THE TIME OF TERMINATION. IN ADDITION,
ALL STOCK OPTIONS REFERENCED IN SECTION 3.1(C) SHALL VEST EFFECTIVE AS
7
OF THE DATE OF TERMINATION, AND EXECUTIVE MAY EXERCISE SUCH OPTIONS FOR A PERIOD
OF THREE MONTHS FROM THE DATE OF TERMINATION.
"SEVERANCE BENEFITS" SHALL MEAN AN AMOUNT EQUAL TO (I) THE EXECUTIVE'S BASE
SALARY FOR THE YEAR IN WHICH SUCH TERMINATION OCCURS AND (II) THE GREATER OF (A)
THE TARGET BONUS FOR THE YEAR IN THE YEAR IN WHICH SUCH TERMINATION OCCURS AND
(B) THE ACTUAL BONUS EARNED BY EXECUTIVE IN THE YEAR IMMEDIATELY PRECEDING SUCH
TERMINATION.
SEVERANCE BENEFITS SHALL BE PAID TO THE EXECUTIVE IN SUBSTANTIALLY
EQUAL INSTALLMENTS IN ACCORDANCE WITH THE CUSTOMARY PAYROLL PRACTICES OF THE
COMPANY'S SALT LAKE CITY, UTAH OFFICES WITH RESPECT TO TIME AND MANNER OF
PAYMENT.
SECTION 4.5
TERMINATION BY THE EXECUTIVE WITHOUT CONSTRUCTIVE
TERMINATION OR TERMINATION BY THE COMPANY FOR CAUSE.
IN THE EVENT THAT THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY IS TERMINATED FOR CAUSE, AS DEFINED BY
SECTION 2.2(C), OR THE EXECUTIVE 'S EMPLOYMENT HEREUNDER SHALL