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EXHIBIT 4.5
THIS AGREEMENT AND THE UNDERLYING SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY BLUE
SKY LAWS. THIS AGREEMENT MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS THE PROPOSED TRANSACTION DOES NOT REQUIRE REGISTRATION OR QUALIFICATION
UNDER APPLICABLE SECURITIES LAWS.
STOCK OPTION AGREEMENT
Vesting Schedule:
Exercise Price Per Share: $ Shares on ________ __, 2000
Shares on ________ __, 2001
Number of Shares: Shares on ________ __, 2002
Shares on ________ __, 2003
Expiration Date: Shares on ________ __, 2004
Shares on ________ __, 2005
Pet Quarters, Inc. (the "Company") and the individual identified below
(the "Participant"), enter into this [ ] NONQUALIFIED STOCK OPTION AGREEMENT /
[ ] INCENTIVE STOCK OPTION AGREEMENT (consisting of seven pages and three
Exhibits) as of _______________ ___, ____ (the "AGREEMENT"). Participant
acknowledges receipt of the Pet Quarters, Inc. Employee Equity Participation
Incentive Plan (the "PLAN") pursuant to which this Agreement has been executed.
PET QUARTERS, INC. PARTICIPANT
By:
---------------------------- -----------------------------------
Name: Name:
-------------------------- ------------------------------
(printed) (printed)
Title:
--------------------------
ARTICLE 1
DEFINED TERMS
Capitalized terms used herein and not otherwise defined herein shall
have the meaning assigned to such terms in the Plan.
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ARTICLE 2
OPTION GRANT, EXERCISE AND REPLACEMENT
2.1 GRANT. This Agreement evidences the Company's grant to the Participant
of the right and option to purchase, on the terms and conditions set
forth herein and in the Plan (this "Option"), all or any part of the
Shares listed on page one at the exercise price per share set forth on
page one (the "Exercise Price"), exercisable as set forth herein, prior
to the close of business on the [expiration date listed on page one]
[the earlier of the termination date of the plan or the day before the
tenth anniversary of the Award Date] [five years] (the "Expiration
Date"). The Exercise Price equals the Fair Market Value of the
Company's Common Stock as of the Award Date. If the Incentive Stock
Option box is checked on page one, it is the intent of the Company that
this Option constitute an incentive stock option within the meaning of
Section 422 of the Code.
2.2 EXERCISABILITY. Subject to the Plan, this Option shall become
exercisable in cumulative installments at the times set forth in the
vesting schedule on page one. This Option shall only be exercisable in
respect of whole Shares, and fractional Share interests shall be
disregarded. At least 100 Shares must be purchased at one time unless
the number purchased is the total number at the time available for
purchase under this Option.
2.3 METHOD OF EXERCISE.
2.3.1 CASH. Exercise of this Option for cash requires delivery to
the Secretary of the Company of (a) a Subscription Form in the
form of Exhibit A, (b) an executed Exercise Agreement in the
form of Exhibit C (the "Exercise Agreement"), (c) this Option,
and (d) payment made in accordance with and in a form
permitted by the Plan for the full Purchase Price of the
Shares to be purchased, subject to such further limitations
and rules or procedures as the Board may from time to time
establish as to any non-cash payment and as to the tax
withholding requirements of the Plan. In addition, the
Participant (or the Participant's Beneficiary or Personal
Representative) shall furnish any written statements required
by this Agreement or the Plan.
2.3.2 CASHLESS EXERCISE. This Option can also be exercised, in whole
or in part, in a "cashless" exercise, upon delivery to the
Company of (a) a Cashless Exercise Form in the form of Exhibit
B, (b) an executed Exercise Agreement in the form of Exhibit
C, (c) this Option, and (d) any payments required under the
Plan or by the Board. In a cashless exercise, the right to
purchase each Share may be exchanged for that number of Shares
of Common Stock determined by multiplying the number one (1)
by a fraction, the numerator of which will be the difference
between (y) the then current Market Price and (z) the Exercise
Price, and the denominator of which will be the then current
Market Price.
2.4 ISSUANCE OF SHARES. Upon the exercise of this Option, the Company will
immediately issue the Shares purchased to the person exercising this
Option, and promptly deliver to such person a certificate or
certificates representing such Shares. If this Option is
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exercised in part, the Company will promptly deliver to the person
exercising this Option a new Option Agreement identical to this Option
Agreement, dated the date hereof, but evidencing the right to purchase
only the remaining Shares. The Company will pay all expenses, transfer
taxes and other charges payable in connection with its issuance and
delivery of such document.
2.5 CONTINUING RIGHT TO PURCHASE CUMULATIVELY. If the Participant does not
in any year purchase all or any part of the Shares to which the
Participant is entitled, then the Participant has the right
cumulatively thereafter to purchase any Shares not so purchased and
such right shall continue until this Option terminates or expires.
2.6 LOSS OF OPTION. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Option,
and upon receipt of an indemnity satisfactory to the Company or, in the
case of any such mutilation, upon surrender of this Option, the Company
will deliver a new, identical Option.
ARTICLE 3
CONSIDERATION TO THE COMPANY
In consideration of the granting of this Option by the Company, the
Participant agrees to render faithful and efficient services to the Company,
with such duties and responsibilities as the Company shall from time to time
prescribe. Nothing contained in this Agreement or in any other documents related
to the Plan shall confer upon the Participant any night to continue performing
services for the Company or constitute any contract of employment, or interfere
in any way with the right of the Company to reduce such person's compensation or
other benefits or to terminate the services of the Participant, with or without
Cause.
ARTICLE 4
TERMINATION
4.1 TERMINATION OF OPTION UPON TERMINATION OF SERVICES. This Option and all
other rights hereunder, to the extent not exercised, will terminate and
become null and void upon the termination of Participant's services for
the Company, except that:
4.1.1 REASON OTHER THAN DEATH, TOTAL DISABILITY OR FOR CAUSE. If the
Participant's services for the Company terminate for any
reason other than death, Total Disability or for Cause, the
Participant has 90 days after the date of termination to
exercise this Option to the extent this Option was exercisable
on the date of termination.
4.1.2 FOR CAUSE. If the Participant's services for the Company are
terminated for Cause, this Option shall lapse immediately upon
the Participant's termination of services for the Company.
4.1.3 TOTAL DISABILITY. If the Participant's services for the
Company are terminated as a result of a Total Disability, or
if the Participant suffers a Total Disability within
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90 days of any termination of services under this SECTION 4.1,
the Participant or the Participant's Personal Representative,
as the case may be, shall have 180 days from the date of Total
Disability (or, if earlier, the date of termination of
Participant's services) to exercise this Option to the extent
this Option was exercisable on such date.
4.1.4 DEATH. If the Participant dies while in the service of the
Company, or within 90 days after any termination of services
described in this SECTION 4.1, then this Option may be
exercised within a period of 180 days after the Participant's
date of death (or, if earlier, the date of termination of
Participant's services), by the Participant's Beneficiary to
the extent this Option was exercisable on the such date.
4.2 TERMINATION OF OPTION ON EXPIRATION DATE. Notwithstanding the
foregoing, in no event may this Option be exercised by anyone after the
Expiration Date.
4.3 TERMINATION OF OPTION ON CERTAIN EVENTS. The Board retains the right to
terminate this Option to the extent not previously exercised upon an
event or transaction in which the Company does not survive.
ARTICLE 5
RESTRICTIONS ON SHARES
5.1 LEGEND. Shares issued pursuant to this Option are subject to certain
restrictions on disposition under the Exercise Agreement, and a
repurchase right under the Exercise Agreement. The Shares will bear, in
addition to any other legends which may be required by the Plan, this
Agreement or applicable securities laws, a legend evidencing this
restriction on disposition and this repurchase right,
5.2 SECURITIES ACT LEGEND. Shares issued pursuant to this Option will bear,
in addition to any other legends which may be required by the Plan,
this Agreement or applicable securities laws, a legend similar to
legend on page one of this Agreement, to the extent necessary under
applicable Securities Laws.
ARTICLE 6
PRIVILEGES OF STOCK OWNERSHIP; NONDISTRIBUTIVE INTENT
6.1 RESTRICTION ON RIGHT. The Participant shall not be, nor have any of the
rights or privileges of, a shareholder of the Company in respect of the
Shares unless and until certificates representing such Shares are
issued by the Company to the Participant. Upon the issuance and
transfer of Shares to the Participant pursuant to the Exercise
Agreement, unless a registration statement is in effect under the
Securities Act of 1933, as amended, ("SECURITIES ACT") and applicable
state securities laws, relating to such issued and transferred Shares,
the Shares may be issued and transferred to the Participant only if he
or she represents and warrants in writing to the Company the items
covered in the Exercise Agreement. The Participant or any other person
then entitled to exercise this
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Option or portion thereof will indemnify the Company against and hold
it free and harmless from any loss, damage, expense or liability
resulting to the Company if any sale or distribution of the Shares by
such person is contrary to the representations and agreement referred
to above.
6.2 STOP-TRANSFER. The Board may take whatever additional actions it deems
appropriate to insure the observance and performance of such
representations and agreement and to effect compliance with the
Securities Act and any other federal or state securities laws or
regulations. Without limiting the generality of the foregoing, the
Board may require an opinion of counsel acceptable to it to the effect
that any subsequent transfer of Shares acquired upon exercise of this
Option does not violate the Securities Act, and may issue stop-transfer
orders covering such Shares. No Shares shall be issued and transferred
unless and until there shall have been full compliance with any then
applicable regulatory requirements (including those of exchanges upon
which any Common Stock of the Company may be listed).
ARTICLE 7
MISCELLANEOUS
7.1 ASSIGNMENTS. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assignees. Except as otherwise
provided in the Plan, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or transferred by
either party without the prior written consent of the other.
7.2 NOTICES. Any notice to be given under the terms of this Agreement shall
be in writing and addressed to the Company at its principal off-ice to
the attention of the President and Chairman, and to the Participant at
the address given to the Company for payroll purposes, or at such other
address as either party may hereafter designate in writing (which may
be a facsimile). Notice will be deemed to have been given and received
when delivered to the address specified by the party to receive the
notice. Either party may, at any time by giving five (5) days' prior
written notice to the other, designate any other address in
substitution of the foregoing address.
7.3 PLAN. This Option and all rights of the Participant under this
Agreement are subject to, and the Participant agrees to be bound by,
all of the terms and conditions of the provisions of the Plan, all of
which are incorporated herein by this reference, to the extent such
provisions are applicable. In the event of a conflict or inconsistency
between the terms and conditions of this Agreement and of the Plan, the
terms and conditions of the Plan shall govern. Unless otherwise
expressly provided in other sections of this Agreement, provisions of
the Plan that confer discretionary authority on the Board do not (and
shall not be deemed to) create any rights in the Participant unless
such rights are expressly set forth herein or are otherwise in the sole
discretion of the Board so conferred by appropriate action of the Board
under the Plan after the date hereof.
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7.4 NOTICE OF DISPOSITION. The Participant agrees to notify the Company of
any intended sale or other disposition of any shares of Common Stock
received upon exercise of this Option.
7.5 INTERPRETATION. If any claim is made by the Participant relating to any
conflict, omission or ambiguity in this Agreement, no presumption or
burden of proof or persuasion will be implied because this Agreement
was prepared by or at the request of the Company or its counsel. The
Participant acknowledges that the Participant has had the opportunity
to consult with the Participant's own counsel prior to the execution
hereof
7.6 AMENDMENTS. Except as otherwise provided in the Plan, any amendments to
this Agreement must be in writing and designated as an amendment, and
signed by both parties hereto.
7.7 SEVERABILITY. The provisions of this Agreement are severable. The
invalidity, in whole or in part, of any provision of this Agreement
shall not affect the validity or enforceability of any other of its
provisions. If one or more provisions hereof shall be declared invalid
or unenforceable, the remaining provisions shall remain in full force
and effect and shall be construed in the broadest possible manner to
effectuate the purposes hereof. The parties further agree to replace
such void or unenforceable provisions of this Agreement with valid and
enforceable provisions which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable
provisions.
7.8 HEADLINES REFERENCES; EXHIBITS. The headings in this Agreement are only
for convenience and ease of reference and are not to be considered in
construction or interpretation of this Agreement, nor as evidence of
the intention of the parties hereto. All exhibits, schedules and
appendices attached to this Agreement are incorporated herein. Except
where otherwise indicated, all references in this Agreement to Sections
refer to Sections of this Agreement.
7.9 COUNTERPARTS. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, and when executed,
separately or together, all of such counterparts shall constitute a
single original instrument, effective in the same manner as if all
parties hereto had executed one and the same instrument.
7.10 ENTIRE AGREEMENT. This Agreement (together with its Exhibits and other
documents referred to herein) is the complete and exclusive statement
of agreement and understanding of the parties with respect to matters
in this Agreement and is a complete and exclusive statement of the
terms and conditions thereof. This Agreement replaces and supersedes
all prior written or oral agreements, statements, correspondence,
negotiations and understandings by and among the parties with respect
to the matters covered by it. No representation, statement, condition
or warranty not contained in this Agreement is binding on the parties.
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7.11 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arkansas, excluding that body
of law relating to conflict of laws.
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CONSENT OF SPOUSE
In consideration of the execution of the foregoing Stock Option
Agreement by Pet Quarters, Inc., I, ____________________________________, the
spouse of the Participant herein named, do hereby agree to be bound by all of
the terms and provisions thereof and of the Plan.
DATED:
-------------------- ------------------------------
Signature of Spouse
------------------------------
Name (printed)
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EXHIBIT A
SUBSCRIPTION FORM
TO BE EXECUTED UPON EXERCISE OF OPTION FOR CASH
The undersigned exercises the right to purchase ______ Shares,
evidenced by (a) this Subscription Form, (b) the enclosed, executed Exercise
Agreement, (c) the enclosed Option, and (d) payment of the Purchase Price in
full ($__________________). Certificate(s) for such shares are to be issued and
delivered as set forth below.
HOLDER
-----------------------------------
Name:
------------------------------
Date:
------------------------------
If the Holder is other than the Participant, specify Holder's status as
(1) Beneficiary or (2) Personal Representative.
-----------------------------------
Status
Name to appear on the stock certificate:
Printed Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Social Security Number:
-----------------------------------
(or Employer Identification Number, or other identifying number)
If the foregoing exercise is not for all of the Shares purchasable under this
Option, please register and deliver a new Option for the unexercised portion as
follows:
Printed Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Social Security Number:
-----------------------------------
(or Employer Identification Number, or other identifying number)
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EXHIBIT B
CASHLESS EXERCISE FORM
The undersigned Holder exercises the right to purchase _____________
Shares, evidenced by (a) this Cashless Exercise Form, (b) the enclosed, executed
Exercise Agreement, (c) the enclosed Option, and (d) any payments required under
the Plan or by the Board. The undersigned Holder requests that the Company
exchange the Option for Shares as provided in Section 2.3.2 of the Option.
Certificate(s) for such shares are to be issued and delivered as set forth
below. HOLDER
-------------------------------------
Name:
--------------------------------
Date:
--------------------------------
If the Holder is other than the Participant, specify Holder's status as
(1) Beneficiary or (2) Personal Representative.
-------------------------------------
Status
Name to appear on the stock certificate:
Printed Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Social Security Number:
-----------------------------------
(or Employer Identification Number, or other identifying number)
If the foregoing exercise is not for all of the Shares purchasable under this
Option, please register and deliver a new Option for the unexercised portion as
follows:
Printed Name:
---------------------------------------------
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Social Security Number:
-----------------------------------
(or Employer Identification Number, or other identifying number)
Calculation of Cashless Exercise:
M = Market Price (current):
---------------------
E = Exercise Price:
---------------------
X = Number of Shares to be issued for each right to purchase one Share
exchanged:
M-E
------ = ---------------------
M
Total number of Shares issuable:
-----------------------
Total number of Shares to be issued:
------------------------
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EXHIBIT C
PET QUARTERS, INC.
EXERCISE AGREEMENT
This Exercise Agreement (this "AGREEMENT"), dated as of is made and
entered into by and between Pet Quarters, Inc., an Arkansas corporation (the
"COMPANY"), and _________________ (the "PURCHASER").
RECITALS
WHEREAS, under the Company's Pet Quarters, Inc. Employee Equity
Participation Incentive Plan (the "Plan"), the Purchaser holds an option (the
"OPTION") to purchase all. or any part of a designated amount of authorized but
unissued shares of common stock of the Company and in connection therewith, as
evidenced by that certain Stock Option Agreement dated as of _________________
(the "OPTION AGREEMENT") of which this Agreement is a part and incorporated
therein;
WHEREAS, the Purchaser desires to exercise the Option and purchase from
the Company and the Company wishes to issue and sell to the Purchaser shares of
its common stock, ("Common Stock"), in accordance with and subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF COMMON STOCK
1.1 COMMON STOCK. Upon the terms and conditions contained herein, the
Company hereby sells and issues to the Purchaser, and the Purchaser
purchases from the Company, at a purchase price of $ ____________ per
share, __________ shares of Common Stock (the "SHARES").
1.2 PAYMENT AND DELIVERY. The Company hereby delivers to the Purchaser
stock certificate(s) representing the Shares against delivery to the
Company by the Purchaser of consideration of ________________________
pursuant to either Section 2.3.1 or Section 2.3.2 of the Option
Agreement. The Company acknowledges receipt of such consideration.
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ARTICLE 2
INVESTMENT REPRESENTATIONS
The Purchaser acknowledges that the Shares are not being registered
under the Securities Act of 1933, as amended ("Act"), based, in part, on
reliance that the issuance of the Shares is exempt from registration under
Section 4(2) of the Act as not involving any public offering. The Purchaser
further acknowledges that the Company's reliance on such exemption is
predicated, in part, on the representations set forth below made by the
Purchaser to the Company:
2.1 FOR PURCHASER'S OWN ACCOUNT. The Purchaser is acquiring the Shares
solely for the Purchaser's own account, for investment purposes only,
and not with an intent to sell, or for resale in connection with any
distribution of all or any portion of the Shares within the meaning of
the Act;
2.2 RELATIONSHIP OR EXPERIENCE. Either (a) the Purchaser has a preexisting
business relationship with the Company or its officers or directors, or
(b) the Purchaser has sufficient business or financial experience, or
has relied upon the advice of the Purchaser's legal counsel, tax
advisors, and/or investment advisors, to have the capacity to protect
the Purchaser's interests in connection with the purchase of the
Shares;
2.3 RESTRICTED SECURITIES. The Purchaser understands that the Shares are
characterized as "restricted securities" under the federal securities
laws since the Shares are being acquired from the Company in a
transaction not involving a public offering and that under such laws
and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances. The
Purchaser represents that the Purchaser is familiar with Rule 144
promulgated under the Act, as presently in effect, and understands the
resale limitations imposed thereby and by the Act; and
2.4 NO ORAL REPRESENTATION OR SOLICITATION. At no time was an oral
representation made to the Purchaser relating to the purchase of the
Shares nor was the Purchaser presented with or solicited by any
leaflet, public or promotional meeting, newspaper or magazine article,
radio or television advertisement or any other form of general
advertising relating to the purchase of the Shares.
ARTICLE 3
RESTRICTIONS ON SHARES
The Purchaser agrees not to transfer the Shares except in accordance
with the express terms of this Section 3. Any attempted transfer in violation of
this Section 3 shall be void and of no effect.
3.1 COMPLIANCE WITH SECURITIES LAWS. Without in any way limiting the
representations set forth above, the Purchaser further agrees not to
make any disposition of all or any portion of the Shares, except in
compliance with applicable state securities laws and unless and until:
(a) there is then in effect a registration statement under the Act
covering such
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proposed disposition and such disposition is made in accordance with
such registration statement; (b) such disposition is made in accordance
with Rule 144 under the Act; or (c) the Purchaser shall have notified
the Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed
disposition, and if requested by the Company, the Purchaser shall have
furnished the Company with an opinion of counsel acceptable to Company
counsel, that such disposition will not require registration under the
Act and will be in compliance with applicable state securities laws.
3.2 TRANSFEREES BOUND. Any transferee of Shares originally issued under
this Agreement other than the Company, whether or not such transferee
is a permitted transferee, shall be subject to the same restrictions as
the transferor, and any attempted disposition of such shares or any
interest therein by operation of law or otherwise to any other person
without the written agreement of the transferee to be bound by the
restrictions on transfer set forth in this Section 3 shall be null and
void. Each proposed transferee must agree in writing to be bound by the
restrictions on transfer of this Section 3.
3.3 LOCK-UP AGREEMENT. If at any time the Company proposes to register its
Common Stock under the Act in connection with an underwritten public
offering of the Company's Common Stock, the Purchaser agrees to enter
into a lock-up agreement with the underwriter or underwriters selected
for such underwriting by the Company restricting any offer, sale, offer
to sell, contract to sell, grant of any option to purchase or otherwise
sell, transfer, pledge, or dispose (collectively, a "Transfer") of any
of the shares of Common Stock of the Company or any securities
convertible into, or exchangeable or exercisable for, shares of the
Company's Common Stock for a period commencing as of 14 days prior to
and ending not more than one year after the effective date of a
registration statement covering such public offering of the Company's
securities. The Purchaser agrees and consents to the entry of
stop-transfer instructions with the Company's transfer agent against
the Transfer of the Company's securities beneficially owned by the
Purchaser.
ARTICLE 4
STOCK CERTIFICATE LEGENDS
SECURITIES ACT LEGEND. Prior to registration under applicable federal
and state securities laws of the issuance of the Shares, all certificates
evidencing such Shares also shall bear the following legend and/or any other
appropriate or required legends under applicable laws or Section 6.4 of the
Plan:
"The shares represented by this certificate have not been
registered or qualified under the Securities Act of 1933, as amended,
(the "Act") or any state securities laws, have been acquired for
investment purposes only, and no sale or transfer of such shares shall
be valid or effective except (a) pursuant to a registration statement
under the Act and registration or qualification under applicable state
securities laws, each of which has become effective and is current
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with respect to the shares being sold; or (b) pursuant to a specific
exemption from registration under the Act and applicable state
securities laws, but only upon prior written authorization of such sale
or transfer by counsel for, or other authorization by, Company."
ARTICLE 5
MISCELLANEOUS
5.1 CAPITALIZED TERMS. Capitalized terms not otherwise defined herein shall
have the meaning specified in the Plan.
5.2 ASSIGNMENTS. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned
by either party without the prior written consent of the other;
provided, however, the Company may assign its rights to any person.
5.3 NOTICES. Any notice, demand, request or other communication herein
requested or permitted to be given shall be in writing and given in the
manner set forth in the Option Agreement.
5.4 INTERPRETATION. If any claim is made by the Participant relating to any
conflict, omission or ambiguity in this Agreement, no presumption or
burden of proof or persuasion will be implied because this Agreement
was prepared by or at the request of the Company or its counsel. The
Participant acknowledges that the Participant has had the opportunity
to consult with the Participant's own counsel prior to the execution
hereof .
5.5 AMENDMENTS. Any amendments to this Agreement must be in writing and
designated as an amendment, and signed by both parties hereto.
5.6 SEVERABILITY. The provisions of this Agreement are severable. The
invalidity, in whole or in part, of any provision of this Agreement
shall not affect the validity or enforceability of any other of its
provisions. If one or more provisions hereof shall be declared invalid
or unenforceable, the remaining provisions shall remain in full force
and effect and shall be construed in the broadest possible manner to
effectuate the purposes hereof. The parties further agree to replace
such void or unenforceable provisions of this Agreement with valid and
enforceable provisions which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable
provisions.
5.7 HEADINGS, REFERENCES; EXHIBITS. The headings in this Agreement are only
for convenience and ease of reference and are not to be considered in
construction or interpretation of this Agreement, nor as evidence of
the intention of the parties hereto. All exhibits, schedules and
appendices attached to this Agreement are incorporated herein. Except
where otherwise indicated, all references in this Agreement to Sections
refer to Sections of this Agreement.
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5.8 COUNTERPARTS. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, and when executed,
separately or together, all of such counterparts shall constitute a
single original instrument, effective in the same manner as if all
parties hereto had executed one and the same instrument.
5.9 ENTIRE AGREEMENT. This Agreement (together with its Exhibits and other
documents referred to herein) is the complete and exclusive statement
of agreement and understanding of the parties with respect to matters
in this Agreement and is a complete and exclusive statement of the
terms and conditions thereof. This Agreement replaces and supersedes
all prior written or oral agreements, statements, correspondence,
negotiations and understandings by and among the parties with respect
to the matters covered by it. No representation, statement, condition
or warranty not contained in this Agreement is binding on the parties.
5.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arkansas, excluding that body
of law relating to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
PET QUARTERS, INC.
By:
---------------------------------
Name:
------------------------------
Title:
------------------------------
"PURCHASER"
------------------------------------
Name:
-------------------------------
Address:
----------------------------
----------------------------
----------------------------
Social Security Number:
-------------
FORM OF OWNERSHIP: [ ] individual [ ] community property
[ ] joint tenants [ ] tenants in common
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