EXECUTIVE IS A PARTY OR BY WHICH
EXECUTIVE IS BOUND, (II) EXECUTIVE IS NOT A PARTY TO OR BOUND BY ANY EMPLOYMENT
AGREEMENT, NONCOMPETE AGREEMENT OR CONFIDENTIALITY AGREEMENT WITH ANY OTHER
PERSON OR ENTITY AND (III) UPON THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY
THE COMPANY, THIS AGREEMENT SHALL BE THE VALID AND BINDING OBLIGATION OF
EXECUTIVE, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS. EXECUTIVE HEREBY
ACKNOWLEDGES AND REPRESENTS THAT FULL UNDERSTANDING OF THE TERMS AND CONDITIONS
CONTAINED HEREIN.
13.
SURVIVAL. PARAGRAPHS 7, 8 AND 9 AND
PARAGRAPHS 13 THROUGH 21 SHALL SURVIVE AND CONTINUE IN FULL FORCE IN ACCORDANCE
WITH THEIR TERMS NOTWITHSTANDING ANY TERMINATION OF THE EMPLOYMENT PERIOD.
14.
NOTICES. ANY NOTICE PROVIDED FOR IN THIS
AGREEMENT SHALL BE IN WRITING AND SHALL BE DELIVERED, EITHER PERSONALLY OR BY
REPUTABLE OVERNIGHT COURIER SERVICE OR MAILED POSTPAID BY FIRST CLASS MAIL,
RETURN RECEIPT REQUESTED, TO THE RECIPIENT AT THE ADDRESS BELOW INDICATED:
Notices to Executive
Notices to the Company
At the address shown
66 E. Wadsworth Park Drive
on the records of the Company
Draper, UT 84020
Attn: General Counsel
Or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice given pursuant to this Agreement shall be deemed to have been given when
so delivered or mailed.
15.
SEVERABILITY. WHENEVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT
IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT UNDER ANY
APPLICABLE LAW OR RULE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY OR
UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER PROVISION OR ANY OTHER JURISDICTION,
BUT THIS AGREEMENT SHALL BE REFORMED, CONSTRUED AND ENFORCED IN SUCH
JURISDICTION AS IF SUCH INVALID, ILLEGAL OR UNENFORCEABLE PROVISION HAD NEVER
BEEN CONTAINED HEREIN
16.
COMPLETE AGREEMENT. THIS AGREEMENT, THOSE
DOCUMENTS EXPRESSLY REFERRED TO HEREIN AND OTHER DOCUMENTS OF EVEN DATE HEREWITH
AND THE EMBODY THE COMPLETE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND
SUPERSEDE AND PREEMPT ANY PRIOR UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY
OR AMONG THE PARTIES, WRITTEN OR ORAL, THAT MAY HAVE RELATED TO THE SUBJECT
MATTER HEREOF IN ANY WAY (INCLUDING, WITHOUT LIMITATION, THE EMPLOYMENT
AGREEMENT BETWEEN EXECUTIVE AND THE COMPANY DATED AS OF FEBRUARY 9, 2002).
NOTWITHSTANDING THE FOREGOING, EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE
RESTRICTIONS CONTAINED IN PARAGRAPHS 7, 8 AND 9 HEREOF ARE IN ADDITION TO, AND
NOT IN LIEU OF, ANY OTHER COMPANY-IMPOSED LIMITATION ON EXECUTIVE'S ACTIVITIES
OR RIGHTS DURING THE EMPLOYMENT PERIOD AND THEREAFTER.
11
17.
NO STRICT CONSTRUCTION. THE LANGUAGE USED IN
THIS AGREEMENT SHALL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES HERETO
TO EXPRESS THEIR MUTUAL INTENT, AND NO RULE OF STRICT CONSTRUCTION SHALL BE
APPLIED AGAINST EITHER PARTY.
18.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED
IN SEPARATE COUNTERPARTS, EACH OF WHICH IS DEEMED TO BE AN ORIGINAL AND ALL OF
WHICH