9.4
APPLICABLE LAW, JURISDICTION AND VENUE.
THIS AGREEMENT IS
ENTERED INTO UNDER, AND SHALL BE GOVERNED FOR ALL PURPOSES BY, THE LAWS OF THE
STATE OF UTAH, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS. ANY SUIT BY THE COMPANY TO ENFORCE ANY RIGHT HEREUNDER OR TO
OBTAIN A DECLARATION OF ANY RIGHT OR OBLIGATION HEREUNDER MAY, AT THE SOLE
OPTION OF THE COMPANY, BE BROUGHT (I) IN ANY COURT OF COMPETENT JURISDICTION IN
THE STATE OF UTAH OR (II) IN ANY COURT OF COMPETENT JURISDICTION WHERE
JURISDICTION MAY BE HAD OVER EXECUTIVE.
EXECUTIVE HEREBY EXPRESSLY CONSENTS TO
THE JURISDICTION OF THE FOREGOING COURTS FOR SUCH PURPOSES AND TO THE
APPOINTMENT OF THE SECRETARY OF STATE FOR THE STATE OF UTAH AS HIS AGENT FOR
SERVICE OF PROCESS.
SECTION 9.5
NO WAIVER.
NO FAILURE BY EITHER PARTY HERETO AT ANY TIME TO
GIVE NOTICE OF ANY BREACH BY THE OTHER PARTY OF, OR TO REQUIRE COMPLIANCE WITH,
ANY CONDITION OR PROVISION OF THIS AGREEMENT SHALL (I) BE DEEMED A WAIVER OF
SIMILAR OR DISSIMILAR PROVISIONS OR CONDITIONS AT THE SAME OR AT ANY PRIOR OR
SUBSEQUENT TIME OR (II) PRECLUDE INSISTENCE UPON STRICT COMPLIANCE IN THE
FUTURE.
SECTION 9.6
SEVERABILITY.
IF A COURT OF COMPETENT JURISDICTION
DETERMINES THAT ANY PROVISION OF THIS AGREEMENT IS INVALID OR UNENFORCEABLE,
THEN THE INVALIDITY OR UNENFORCEABILITY OF THAT PROVISION SHALL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT, AND ALL
OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
SECTION 9.7
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, BUT ALL OF WHICH
TOGETHER WILL CONSTITUTE ONE AND THE SAME AGREEMENT.
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SECTION 9.8
WITHHOLDING OF TAXES.
THE COMPANY MAY WITHHOLD FROM ANY
BENEFITS PAYABLE UNDER THIS AGREEMENT ALL FEDERAL, STATE, CITY OR OTHER TAXES AS
MAY BE REQUIRED PURSUANT TO ANY LAW OR GOVERNMENTAL REGULATION OR RULING.
SECTION 9.9
COMPLIANCE WITH IRC SECTION 409A.
NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, (I) IF AT THE TIME OF THE EXECUTIVE'S
TERMINATION OF EMPLOYMENT WITH THE COMPANY, EXECUTIVE IS A "SPECIFIED EMPLOYEE"
AS DEFINED IN SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") AND THE DEFERRAL OF THE COMMENCEMENT OF ANY PAYMENTS OR BENEFITS
OTHERWISE PAYABLE HEREUNDER AS A RESULT OF SUCH TERMINATION OF EMPLOYMENT IS
NECESSARY IN ORDER TO PREVENT ANY ACCELERATED OR ADDITIONAL TAX UNDER SECTION
409A OF THE CODE, THEN THE COMPANY WILL DEFER THE COMMENCEMENT OF THE PAYMENT OF
ANY SUCH PAYMENTS OR BENEFITS HEREUNDER (WITHOUT ANY REDUCTION IN SUCH PAYMENTS
OR BENEFITS ULTIMATELY PAID OR PROVIDED TO THE EXECUTIVE) UNTIL THE DATE THAT IS
SIX MONTHS FOLLOWING THE EXECUTIVE'S TERMINATION OF EMPLOYMENT WITH THE COMPANY
(OR THE EARLIEST DATE AS IS PERMITTED UNDER SECTION 409A OF THE CODE), AND (II)
IF ANY OTHER PAYMENTS OF MONEY OR OTHER BENEFITS DUE TO THE EXECUTIVE HEREUNDER
COULD CAUSE THE APPLICATION OF AN ACCELERATED OR ADDITIONAL TAX