EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as
of the 20th day of September 2000, by and between Veterinary Centers of America,
Inc., a Delaware corporation (the "Company") and Xxxx Xxxxxx, an individual
("Officer").
R E C I T A L S
Pursuant to that certain Agreement and Plan of Merger by and between
the Company, Vicar Operating, Inc., a Delaware corporation and Vicar Recap,
Inc., a Delaware corporation dated March 30, 2000, the Company as the surviving
corporation in the merger has determined to employ Officer as its Senior Vice
President. The parties desire that this Agreement supersede any and all prior
employment agreements Officer may have with the Company and that such prior
agreements be cancelled.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing recitals and the
terms, covenants and conditions contained herein, the Company and Officer agree
as follows:
1. Employment.
Company hereby employs Officer, and Officer hereby accepts such
employment, as Senior Vice President of the Company, on the terms and subject to
the conditions set forth herein.
2. Capacity and Duties.
2.1 Officer shall serve the Company as its Senior Vice President and
shall report directly to the Chief Executive Officer of the Company.
2.2 Subject to the direction and control of the Chief Executive
Officer, Officer shall perform such duties and responsibilities as are currently
prescribed by the Bylaws of the Company and which are customarily vested in the
office of senior vice president of a corporation.
2.3 Officer shall devote his business time, energy and efforts
faithfully and diligently to promote the Company's interests.
2.4 The terms of this Section 2 shall not preclude Officer from serving
and performing his duties as an officer and/or director of xxxxx.xxx, inc., or
any of its subsidiaries, or engaging in appropriate professional, educational,
civic, charitable or religious activities or from devoting a reasonable amount
of time to private investments, provided that such activities do not interfere
or conflict with Officer's duties to the Company.
2.5 Except for routine travel incident to the business of the Company,
Officer shall perform his duties and obligations under this Agreement
principally from an office provided by the Company in Los Angeles, California or
the surrounding area.
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3. Term.
This Agreement shall be effective as of the date hereof (the "Effective
Date") and shall govern Officer's employment from and after such date. Officer's
employment shall terminate on the third anniversary of the Effective Date unless
sooner terminated by either party hereto upon 60 days advance written notice or
otherwise in accordance with the provisions of this Agreement or extended by an
amendment executed by the Company and the Officer (the "Term").
4. Compensation.
4.1 Base Salary.
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4.1.1 As compensation for services rendered under this Agreement,
the Company shall pay to Officer a base salary (the "Base Salary") computed in
accordance with Section 4.1.3 below during the Term of this Agreement, payable
in accordance with the normal payroll procedures of the Company.
4.1.2 In addition to the Base Salary, the Company shall pay to
Officer additional compensation during each year in the Term of this Agreement
in an amount equal to $48,000, payable in accordance with the normal payroll
procedures of the Company.
4.1.3 During the term of this Agreement, Officer's Base Salary
shall be $200,000 and shall be adjusted as provided in this Section. Commencing
on January 1 2001 and on each anniversary thereafter (each, an "Adjustment
Date"), or from time to time at the sole discretion of the Board of Directors,
Officer's Base Salary shall be reviewed by the Board of Directors and may be
increased, but may never be decreased, in the sole discretion of the Board of
Directors; provided, however, on each Adjustment Date, Officer's Base Salary
shall be increased by at least an amount which equates to the percentage
increase in the consumer price index for the greater Los Angeles metropolitan
area from January 1, 2000 to the Adjustment Date.
4.1.4 The Company may deduct from the Base Salary amounts
sufficient to cover applicable federal, state and/or local income tax
withholdings and any other amounts which the Company is required to withhold by
applicable law.
4.2 Cash Bonus Plan. The Board of Directors shall adopt a cash bonus
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plan designed to provide Officer an opportunity to earn annual cash bonuses
during each calendar year during his employment (commencing with calendar year
2000) of up to 70% of Officer's Base Salary, pro rated, based on (i) the
Company's Adjusted EBITDA and (ii) acquisition goals established by the Chief
Executive Officer and the Board of Directors that will be based primarily on the
satisfaction of the acquisition plans of the Company, the successful integration
and operation of the acquisitions and the overall performance of the Company as
it relates to the business plan of the Company. Approximately 40% any bonus will
reflect EBITDA goals and 60% of any bonus will reflect acquisition goals. The
amount of the cash bonus related to EBITDA goals for any particular calendar
year shall be determined as follows: (i) if the Company's Adjusted EBITDA for
such calendar year is 95% or below the Target for such calendar year, Officer
shall not receive a cash bonus for such calendar year (ii) if the Company's
Adjusted EBITDA for such calendar year is between 95% and 100% of the Target for
such calendar year,
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Officer shall receive a cash bonus pro rated between 0% and 15% of the Officer's
Base Salary for such calendar year; (iii) if the Company's Adjusted EBITDA for
such calendar year is equal to 100% of the Target for such calendar year,
Officer shall receive a cash bonus equal to 15% of the Officer's Base Salary for
such calendar year; (iv) if the Company's Adjusted EBITDA is between 100% and
105% of the Target for such calendar year Officer shall receive a cash bonus
prorated between 15% and 30% of the Officer's Base Salary for such calendar
year, and (v) if the Company's Adjusted EBITDA for such calendar year is equal
to 105% of the Target for such calendar year, Officer shall receive a cash bonus
equal to 30% of the Officer's Base Salary for such calendar year. Officer's cash
bonus for 2000 shall be based on the Base Salary provided for in this Agreement,
as if Officer received such Base Salary for the entire calendar year. Officer
shall receive the full cash bonus for calendar year 2000 notwithstanding that
this Agreement was entered into during the calendar year. If this Agreement is
terminated in the middle of a calendar year, Officer shall receive a cash bonus
for services rendered through the Termination Date (as defined below) equal to
the cash bonus he would have received for the entire calendar year, pro rated
through the Termination Date. All cash bonuses hereunder shall be paid to
Officer within five business days following the date the audited consolidated
financial statements for the Company for the applicable calendar year become
available. For purposes of this Agreement, Adjusted EBITDA shall mean
consolidated earnings for the Company before interest, taxes, depreciation and
amortization and any amount of expense arising under that certain Management
Services Agreement dated as of the date hereof by and between the Company, Vicar
Operating, Inc., a Delaware corporation and Xxxxxxx Xxxxx & Partners, L.P. for a
calendar year, as reflected on the Company's audited consolidated financial
statements for such calendar year. For purposes of this Agreement, the term,
"Target," shall mean the planned targeted Adjusted EBITDA for the Company for
each calendar year as set forth on Exhibit A attached hereto, which Exhibit
shall be amended from time to time to reflect (x) transactions after the date
hereof outside of the ordinary course of business, such as (i) material
acquisitions that require consent of the lenders party to the Credit and
Guaranty Agreement, dated as of the date hereof, by and among the Company, the
lenders party thereto from time to time, and the other signatories thereto or
(ii) dispositions of assets and changes in accounting policy, and (y) extensions
of the Term of this Agreement beyond the third anniversary of the Effective
Date. In any such case, the parties shall negotiate in good faith amendments to
the Exhibit that are equitable in the circumstances. Any bonus for achievement
of acquisition goals will be determined by the Board of Directors taking into
consideration the recommendations of the Chief Executive Officer.
4.3 Stock Options. If options are granted to Officer pursuant to
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the Company's stock incentive programs, the options shall vest in 24 equal
monthly installments on the first day of each month commencing on the date of
grant. All options to purchase the Company's Common Stock granted to Officer
whether pursuant to a Company Stock Option Plan or otherwise and notwithstanding
the provisions of any other agreement to the contrary, may be exercised by
Officer or by Officer's family by delivery of a promissory note in the amount of
the total exercise price of the option (the "Exercise Price"). The promissory
note shall bear interest at the then current thirty year U.S. treasury bond
rate, shall be nonrecourse except to the security referred to in the following
clause, shall be secured by the Common Stock of the Company so purchased, and
shall be payable in full (principal and interest) on the fourth anniversary of
the date of the purchase of the shares. Notwithstanding the foregoing, Officer
shall apply all proceeds from the sale of the shares so purchased by delivery of
a promissory note to the repayment of principal and interest outstanding under
the note until all principal and interest is paid in full. Following such time
as the Company's Common Stock is registered under the Securities Exchange Act of
1934, as amended, the Company shall maintain an effective registration
statement covering the shares underlying the options granted to Officer whether
pursuant to a Company Stock Option Plan or otherwise.
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4.4 Benefits.
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4.4.1 Vacation. Officer shall be entitled to four weeks paid
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vacation for each calendar year during Officer's employment; provided, however,
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that vacation shall only be taken at such times as not to interfere with the
necessary performance of Officer's duties and obligations under this Agreement.
4.4.2 Automobile. The Company shall provide Officer with the use
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of a luxury automobile that is selected by Officer and approved by the Board of
Directors, the cost (the "Automobile Cost") of which during the first year of
the Term shall not be less than the cost that the Company currently provides for
Officer's use of a Mercedes Benz 1999 Model. The Company shall pay all costs of
insurance, repair, maintenance and operation of such automobile. At the end of a
three year period (or termination of employment, if earlier), Officer may, but
is not obligated to, purchase the automobile for the book value of the
automobile on the Company's financial records.
4.4.3 Other Benefits; Insurance. During the term of Officer's
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employment under this Agreement, if and to the extent eligible, Officer shall be
entitled to participate in all operative Officer benefit and welfare plans of
the Company then in effect ("Company Officer Benefit Plans"), including, to the
extent then in effect, group life, medical, disability and other insurance
plans, all on the same basis generally applicable to the executives of the
Company; provided, however, that nothing contained in this Section 4.4.3 shall,
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in any manner whatsoever, directly or indirectly, require or otherwise prohibit
the Company from amending, modifying, curtailing, discontinuing or otherwise
terminating, any Company Officer Benefit Plan at any time (whether during or
after the term hereof) except that the Company will at all times during the term
hereof and any severance period referred to in Section 8 or 9 hereof maintain
medical insurance (including Exec-U-Care Medical Reimbursement Insurance or a
substantially similar policy) covering Officer and his dependents with benefits
at least as favorable as those provided by the Company to its executives as of
the date of termination.
4.4.4 Reimbursement. Officer shall be entitled to reimbursement
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from the Company for the reasonable costs and expenses incurred in connection
with the performance of the duties and obligations provided for in this
Agreement.
5. Indemnification.
The Company and Officer are parties to an Indemnification Agreement,
pursuant to which, inter alia, the Company has agreed, on the terms and
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conditions therein set forth, to indemnify Officer against certain claims
arising by reason of the fact that he is or was an officer or director of the
Company.
6. Trade Secrets.
Officer will not at any time during the Term hereof and for the three
year period thereafter, in any fashion, form, or manner, unless specifically
consented to in writing by the Company, either directly or indirectly use or
divulge, disclose or communicate to any person, firm or corporation, any
confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of the Company, except in the
ordinary course of the Company's business. All equipment, notebooks, documents,
memoranda, report, files, samples, books, correspondence, lists, other written
and graphic records, and the like, affecting or relating to the business of the
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Company, which Officer shall prepare, use, construct, observe, possess or
control, shall be and remain the Company's sole property. Officer's obligation
under the preceding sentence shall continue in effect after the end of Officer's
employment with the Company and the obligations shall be binding on Officer's
assigns, heirs, executors, administrators, and other legal representatives.
7. Return of Corporate Property and Trade Secrets.
Upon termination of this Agreement for any reason, Officer, or his
estate in the event of his death, shall turn over to the Company all
correspondence, property, writings or documents then in his possession or
custody belonging to or relating to the affairs of the Company or any of its
subsidiaries or affiliates or comprising or relating to the Trade Secrets.
8. Termination of Employment.
8.1 Termination in Case of Death.
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8.1.1 Officer's employment hereunder shall terminate immediately
upon the death of Officer.
8.1.2 Upon termination of this Officer's employment pursuant to
this Section 8.1, the Company shall pay to Officer's estate, on the Termination
Date (as hereinafter defined), a lump sum payment of an amount equal to (x) all
accrued and unpaid salary and other compensation payable to Officer by the
Company and all accrued and unused vacation and sick pay payable to Officer by
the Company with respect to services rendered by Officer to the Company through
the Termination Date, and (y) the amount Officer would have earned as Base
Salary during the twelve months following the Termination Date; provided,
however, such amounts shall be reduced by the amount of any payments paid to
Officer's estate or heirs under any life insurance policy maintained by the
Company for the benefit of Officer pursuant to the provisions of Section 4.4
hereof. In addition to the foregoing, and notwithstanding the provisions of any
other agreement to the contrary, (x) all options to purchase the Common Stock of
the Company which have been granted to Officer and which would have vested
during the 24 months following the date of termination shall become immediately
exercisable on the Termination Date and, notwithstanding any other agreement to
the contrary, shall remain exercisable for the full term of each such option,
and (y) the Company shall continue to provide for the benefit of Officer's
family the medical benefits referred to in Section 4.4.3 hereof for the twelve
months following the Termination Date.
8.2 Termination in Case of Disability.
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8.2.1 If Officer suffers a physical or mental disability which
results in Officer being unable to perform his duties hereunder for a 26
consecutive week period, then the Board of Directors shall select a qualified
physician to examine Officer and review his physical and mental capacity. If
such physician determines in good faith that such physical or mental disability
renders Officer incapable of performing his duties hereunder for a period of at
least 26 consecutive weeks following the date of such physician's written
opinion, then Officer's employment shall terminate effective 26 weeks following
the date of such physician's written opinion.
8.2.2 Upon termination of Officer's employment pursuant to this
Section 8.2, the Company shall pay to Officer, on the Termination Date, a lump
sum payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and
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all accrued and unused vacation and sick pay payable to Officer by the Company
with respect to services rendered by Officer to the Company through the
Termination Date, and (y) the amount Officer would have earned as Base Salary
during the twelve months following the Termination Date; provided, however, such
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amount shall be reduced by the amount of any payments to be paid to Officer
under any long-term disability insurance policy maintained by the Company for
the benefit of Officer pursuant to Section 4.4.3. In addition to the foregoing,
and notwithstanding the provisions of any other agreement to the contrary, (x)
all options to purchase the Common Stock of the Company which have been granted
to Officer and which would have vested during the 24 months following the date
of termination shall become immediately exercisable on the Termination Date and,
notwithstanding any other agreement to the contrary, shall remain exercisable
for the full term of each such option, and (y) the Company shall continue to
provide to Officer all other benefits referred to in Section 4.4.3 hereof for
the twelve months following the Termination Date.
8.3 Termination By Officer for Cause.
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8.3.1 The employment of Officer hereunder shall terminate
immediately upon written notice delivered by Officer to the Company upon the
occurrence of any of the following events:
8.3.1.1 The willful breach of any of the material
obligations of the Company to Officer under this Agreement following written
notice delivered to the Company and a reasonable cure period not to exceed 30
days; or
8.3.1.2 The Company's chief executive offices are moved to
a location outside of a ten mile radius of its current location;
8.3.2 Upon termination of Officer's employment pursuant to this
Section 8.3, the Company shall pay to Officer, on the Termination Date, a lump
sum payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) the
amount Officer would have earned as Base Salary during the twelve months
following the Termination Date and (z) (i) in the event no previous annual bonus
has been paid or is payable pursuant to this Agreement, 20% of Officer's Base
Salary for each annual period (or portion thereof) during the twelve months
following the Termination Date, or (ii) in the event at least one annual bonus
has been paid or is payable to Officer, an amount equal to the greater of (x)
the last annual bonus paid or payable to Officer, and (y) the average annual
bonus based on all bonuses paid or payable to Officer pursuant to this
Agreement. In addition to the foregoing, and notwithstanding the provisions of
any other agreement to the contrary, (x) all options to purchase the Common
Stock of the Company which have been granted to Officer shall become immediately
exercisable on the Termination Date and, notwithstanding any other agreement to
the contrary, shall remain exercisable for the full term of each such option,
and (y) the Company shall continue to provide to Officer all other benefits that
would otherwise be payable to Officer pursuant to Section 4.4.3 hereof for the
twelve months following the Termination Date.
8.4 Termination by Officer Without Cause.
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8.4.1 This Agreement shall terminate immediately upon delivery to
the Company of written notice of termination by Officer without cause.
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8.4.2 Upon termination of this Agreement pursuant to this Section
8.4, the Company shall pay to Officer, on the Termination Date, a lump sum
payment of an amount equal to all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date.
8.5 Termination By the Company Without Cause.
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8.5.1 The employment of Officer shall terminate immediately upon
delivery to Officer of written notice of termination by the Company, which shall
be deemed to be "without cause" unless termination is expressly stated to be
pursuant to Sections 8.1, 8.2 or 8.6.
8.5.1.1 Upon termination of Officer's employment pursuant
to this Section 8.5, the Company shall pay to Officer, on the Termination Date,
a lump sum payment of an amount equal to (x) all accrued and unpaid salary and
other compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) if (a)
on the Termination Date, Officer has been continuously employed by the Company
for at least nine months but less than fifteen months, the Company shall pay to
Officer the amount Officer would have earned as Base Salary during the six
months following the Termination Date; or (b) on the Termination Date, Officer
has been continuously employed by the Company for at least fifteen months from
the Effective Date, the Company shall pay to Officer the amount Officer would
have earned as Base Salary during the twelve months following the Termination
Date; and (i) in the event no previous annual bonus has been paid or is payable
pursuant to this Agreement, 20% of Officer's Base Salary, or (ii) in the event
at least one annual bonus has been paid or is payable to Officer, an amount
equal to the greater of (x) the last annual bonus paid or payable to Officer,
and (y) the average annual bonus based on all bonuses paid or payable to Officer
pursuant to this Agreement. In addition to the foregoing, and notwithstanding
the provisions of any other agreement to the contrary, (x) all options to
purchase the Common Stock of the Company which have been granted to Officer
shall become immediately exercisable on the Termination Date and,
notwithstanding any other agreement to the contrary, shall remain exercisable
for the full term of each such option, and (y) the Company shall continue to
provide to Officer all other benefits that would otherwise be payable to Officer
pursuant to Section 4.4.3 hereof for the same number of months following the
Termination Date for which Base Salary is payable hereunder.
8.6 Termination by the Company for Cause.
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8.6.1 The employment of Officer hereunder shall terminate
immediately upon written notice delivered by the Company to the Officer of
termination for "cause" by reason of:
8.6.1.1 Officer's conviction (including any plea of guilty
or no contest) of (x) any felony or misdemeanor involving the embezzlement,
theft or misappropriation of monies or other property of the Company or (y) any
felony involving the embezzlement, theft or misappropriation of monies or other
property or crime of moral turpitude;
8.6.1.2 The willful and continued neglect by Officer of his
duties under this Agreement, but only if such neglect continues for 30 days
following receipt by the Officer of written notice from the Company specifying
such breach and demanding that Officer cease such activities;
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8.6.1.3 The willful breach of any of the material
obligations of the Officer to the Company under this Agreement following written
notice delivered to the Officer and a reasonable cure period not to exceed 30
days;
8.6.2 Upon termination of this Agreement pursuant to this Section
8.6, the Company shall pay to Officer, on the Termination Date, all accrued and
unpaid salary and other compensation payable to Officer by the Company and all
accrued and unused vacation and sick pay payable to Officer by the Company with
respect to services rendered by the Officer to the Company through the
Termination Date in a lump sum payment. The Company shall have no further
obligation to the Officer pursuant to this Agreement.
8.7 Termination Date. For purposes of Sections 8 or 9 hereof, the
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term, "Termination Date", shall mean that date on which Officer's employment is
terminated pursuant to Section 8 or 9, as applicable.
9. Severance Payments Upon Change in Control.
9.1 Severance Payment. Upon the occurrence of a Change in
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Control (as defined in Section 9.5 below) of the Company, the employment of
Officer hereunder shall terminate and the Company shall pay to Officer, on the
fifth day following the date on which the Change of Control occurs (which for
the purposes of this Section 9 shall be the Termination Date), a lump sum
payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) the
Base Salary Officer would have earned during the twelve months following the
Termination Date; and (z) (i) in the event no previous annual bonus has been
paid or is payable pursuant to this Agreement, 20% of Officer's Base Salary, or
(ii) in the event at least one annual bonus has been paid or is payable to
Officer, an amount equal to the greater of (x) the last annual bonus paid or
payable to Officer, and (y) the average annual bonus based on all annual bonuses
paid or payable to Officer pursuant to this Agreement.
9.2 Continuation of Benefits. The Company shall continue for the that
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period of time which is the greater of twelve months following the Termination
Date and the remaining scheduled Term of the Agreement to provide Officer with
all benefits that would have been payable to him pursuant to Section 4.4.3
hereof if Officer had been employed by the Company during such period.
9.3 Vesting of Options. In addition to the foregoing, and
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notwithstanding the provisions of any other agreement to the contrary, upon the
occurrence of a Change in Control, all options to purchase Common Stock of the
Company which have been granted to Officer by the Company shall become
immediately exercisable on the Termination Date and, notwithstanding any other
agreement to the contrary, shall remain exercisable for the full term of each
such option.
9.4 Provision of Services Following Change in Control. At the
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request of the Company, Officer shall continue to serve hereunder for a period
of up to 180 days following the Termination Date. If the Company requests
Officer to perform such services, Officer shall be compensated from and after
the Termination Date for the period that Officer actually remains employed by
the Company at his then current Base Salary. Any such amounts payable to Officer
shall be in addition to and not in lieu of the amounts payable to Officer under
Section 9.1 above. Upon the later to
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occur of an occurrence of a Change of Control or the termination of any period
during which Officer continues to provide services as aforesaid, Officer's
employment hereunder shall terminate.
9.5 Change in Control. For purposes of this Section 9, "Change in
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Control" of the Company shall be deemed to have occurred if (a) there shall be
consummated (x) any consolidation or merger of the Company into or with another
Person (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Securities
and Exchange Act of 1934, as amended (the "Exchange Act")), if Green Equity
Investors III, L.P. ("GEI III") or any co-investor, or affiliate, related party
or entity controlled by Xxxxxxx Xxxxx & Partners, L.P. (LGP") (collectively, the
"GEI Group") owns less than 50% of the voting control of the surviving
corporation immediately after the merger, or (y) any sale, lease or other
transfer (in one transaction or a series of related transactions) of all of the
assets of the Company or either of its laboratory or hospital operating
divisions; provided however, no payment pursuant to Section 9.1 shall be payable
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if Officer agrees to the transactions set forth in this Subsection 9.5(y), or
(b) the shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company, or (c) any Person shall become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) prior
to the time (if any) that the Company issues any equity securities pursuant to a
registration statement filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, of a greater number of voting securities
of the Company than the GEI Group), or (d) after such time (if any) that the
Company issues any equity securities pursuant to a registration statement filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, any Person (other than the GEI Group) shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 30% or more of the
voting securities of the Company.
The parties believe that the payments pursuant to Sections 8 and 9
hereof do not constitute "Excess Parachute Payments" under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"). Notwithstanding such
belief, if any benefit under these sections constitutes an "Excess Parachute
Payment," the Company shall pay to Officer an additional amount ("Tax Payment")
such that (x) the excess of all Excess Parachute Payments (including payments
under this sentence) over the sum of excise tax thereon under Section 4999 of
the Code and income tax thereon under Subtitle A of the Code and under
applicable state law is equal to (y) the excess of all Excess Parachute Payments
(excluding payments under this sentence) over income tax thereon under Subtitle
A of the Code and under applicable state law. Such Tax Payment shall be paid to
Officer concurrently with the severance payment referred to in Section 9.1
above.
10. No Mitigation.
The payments required to be paid to Officer by Company pursuant to
Sections 8 and 9 shall not be reduced by or mitigated by amounts which Officer
earns or is capable of earning during any period following his Termination Date.
11. Injunctive Relief.
Officer hereby recognizes, acknowledges and agrees that in the event of
any breach by Officer of any of his covenants, agreements, duties or obligations
hereunder, the Company would suffer great and irreparable harm, injury and
damage, the Company would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered by the Company as a result of such breach,
and the Company would not be reasonably or adequately compensated in damages in
any action at law. Officer therefore agrees that, in addition to any other
remedy the Company
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may have at law, in equity, by statute or otherwise, in the
event of any breach by Officer of any of the covenants, agreements, duties or
obligations hereunder, the Company or its subsidiaries shall be entitled to seek
and receive temporary, preliminary and permanent injunctive and other equitable
relief from any court of competent jurisdiction to enforce any of the rights of
the Company or its subsidiaries or any of the covenants, agreements, duties or
obligations of Officer hereunder, or otherwise to prevent the violation of any
of the terms or provisions hereof, all without the necessity of proving the
amount of any actual damage to the Company or its subsidiaries thereof resulting
therefrom; provided, however, that nothing contained in this Section 11 shall be
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deemed or construed in any manner whatsoever as a waiver by the Company or its
subsidiaries of any of the rights which any of them may have against Officer at
law, in equity, by statute or otherwise arising out of, in connection with or
resulting from the breach by Officer of any of his covenants, agreements, duties
or obligations hereunder.
12. Miscellaneous.
12.1 Entire Agreement. This Agreement contains the entire
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understanding of the parties hereto relating to the subject matter hereof and
cannot be changed or terminated except in writing signed by both Officer and the
Company.
12.2 Limited Liabilities. All liabilities incurred by Officer in his
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capacity as an officer hereunder shall be incurred for the account of the
Company, and Officer shall not be personally liable therefor. Officer shall not
be liable to the Company, or any of its respective subsidiaries, affiliates,
employees, officers, directors, agents, representatives, successors, assigns,
stockholders, and their respective subsidiaries and affiliates, the Company
shall, and hereby agrees to, indemnify, defend and hold Officer harmless from
and against any and all damages and/or loss or liability (including, without
limitation, all costs of defense thereof), for any acts or omissions in the
performance of service under and within the scope of this Agreement on the part
of Officer.
12.3 Notices. All notices, requests and other communications
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(collectively, "Notices") given pursuant to this Agreement shall be in writing,
and shall be delivered by facsimile transmission with a copy delivered by
personal service or by United States first class, registered or certified mail
(return receipt requested), postage prepaid, addressed to the party at the
address set forth below:
If the Company: 00000 Xxxx Xxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Board of Directors
Facsimile No.: (000) 000-0000
If to Officer: Xxxx Xxxxxx
00000 Xxxx Xxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Any Notice shall be deemed duly given when received by the addressee
thereof, provided that any Notice sent by registered or certified mail shall be
----
deemed to have been duly given three days from date of deposit in the United
States mails, unless sooner received. Either party may from time to time change
its address for further Notices hereunder by giving notice to the other party in
the manner prescribed in this Section 12. 3.
10
12.4 Governing Law. This Agreement has been made and entered into in
-------------
the state of California and shall be construed in accordance with the laws of
the State of California without regard to the conflict of laws principles
thereof.
12.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
12.6 Severable Provisions. The provisions of this Agreement are
--------------------
severable, and if any one or more provisions are determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
12.7 Successors and Assigns. This Agreement and all obligations and
----------------------
benefits of Officer and the Company hereunder shall bind and inure to the
benefit of Officer and the Company, their respective affiliates, and their
respective successors and assigns.
12.8 Amendments and Waivers. No amendment or waiver of any term or
----------------------
provision of this Agreement shall be effective unless made in writing. Any
written amendment or waiver shall be effective only in the instance given and
then only with respect to the specific term or provision (or portion thereof) of
this Agreement to which it expressly relates, and shall not be deemed or
construed to constitute a waiver of any other term or provision (or portion
thereof) waived in any other instance.
12.9 Title and Headings. The titles and headings contained in this
------------------
Agreement are included for convenience only and form no part of the agreement
between the parties.
12.10 Survival. Notwithstanding anything to the contrary contained
--------
herein, the provisions of Sections 6, 7, 8, 9, and 11 shall survive the
termination of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
first set forth above.
VCA Antech, Inc.
----------------------------------------
By /s/ Xxxxxx X. Xxxxx
--------------------------------------
Its: Chief Executive Officer
------------------------------------
ACCEPTED AND AGREED TO:
/s/ Xxxx Xxxxxx
--------------------------------
Xxxx Xxxxxx
--------------------------------
12
