1
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered
into as of June 6, 2000 by and between PET QUARTERS, INC., an Arkansas
corporation (the "COMPANY"), and Xxxxxx X. Xxxxxxx, an Arkansas resident
("EXECUTIVE").
WHEREAS, Executive and the Company deem it to be in their
respective best interests to enter into an agreement providing for the Company's
employment of Executive pursuant to the terms herein stated.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. START DATE. This Agreement shall be effective as of the date hereof,
and the "TERM OF EMPLOYMENT" (as defined herein) shall commence as of
June 1, 2000 (the "START DATE").
2. POSITION AND DUTIES. The Company hereby employs Executive in the
capacity as Chief Executive Officer commencing as of the Start Date for
the Term of Employment. Executive shall devote his best efforts to the
performance of the services customarily incident to such offices and
positions and to such other services of a senior executive nature as
may be reasonably requested by the Board of Directors of the Company
(collectively, "COMPANY MATTERS"). Executive, in his capacity as an
employee and officer of the Company, shall be responsible to and obey
the reasonable and lawful directives of the Board of Directors.
Executive shall report directly to the Board of Directors of Company
only, and Executive shall have such authority and duties as are
customary in such position. During the Term of Employment, Executive's
office shall be located within the City of Lonoke, Arkansas or the City
of Little Rock, Arkansas, and Executive shall not be required to locate
outside of either of these two cities without Executive's written
consent.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay to Executive for the
duration of the Term of Employment a minimum salary at the
rate of one hundred thousand dollars ($100,000.00) per
calendar year and agrees that such salary shall be reviewed
quarterly by the Board and, if appropriate, will be increased
based on the Company's ability to meet its budgetary and
strategic goals and objectives (the "Base Salary"). Such
salary shall be payable at least monthly in accordance with
the Company's normal payroll procedures. At no time during the
Term of Employment shall Executive's Base Salary be decreased
from the amount of the Base Salary then in effect without the
consent of Executive.
(b) PERFORMANCE BONUS. In addition to the compensation otherwise
payable to Executive pursuant to this Agreement, Executive be
eligible to receive additional
1
2
annual bonuses to the extent, if any, awarded by the Board in
the sole discretion of the Board (the "DISCRETIONARY BONUS").
(c) STOCK OPTIONS. In addition to the compensation otherwise
payable to Executive pursuant to this Agreement, Executive
shall receive, under a separate agreement, stock options
according to terms and conditions comparable to
similarly-situated officers of the Company.
4. BENEFITS. During the Term of Employment:
(a) Executive shall be eligible to participate in any life, health
and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive
compensation programs, and other fringe benefit programs made
available to senior executive employees of the Company from
time to time, and Executive shall be entitled to receive such
other fringe benefits as may be granted to him from time to
time by the Company's Board.
(b) Executive shall be allowed vacations and leaves of absence
with pay in accordance with Company policy.
(c) The Company shall reimburse Executive for reasonable business
expenses incurred in performing Executive's duties and
promoting the business of the Company, including, but not
limited to, reasonable entertainment expenses, travel and
lodging expenses, long distance and cellular telephone
expenses, and approved professional memberships, following
presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named insured under
all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in
his or her capacity as an officer or director. Company shall
indemnify Executive in his capacity as an officer or director
and hold him harmless from any cost, expense or liability
arising out of or relating to any acts or decisions made by
him on behalf of or in the course of performing services for
the Company (to the maximum extent provided by the Bylaws of
the Company and applicable law).
5. TERM; TERMINATION OF EMPLOYMENT. As used herein, the phrase "TERM OF
EMPLOYMENT" shall mean the period commencing on the Start Date and
ending approximately two (2) years from the Start Date on May 31, 2000;
provided, however, that, unless either the Company or Executive
provides two (2) months notice to the contrary prior to the end of the
Term of Employment, the Term of Employment shall automatically be
extended for one (1) year periods. Notwithstanding the foregoing, the
Term of Employment shall expire on the first to occur of the following
(the "TERMINATION DATE"):
2
3
(a) TERMINATION BY THE COMPANY WITHOUT CAUSE. Notwithstanding
anything to the contrary in this Agreement, whether express or
implied, the Company may, at any time, terminate Executive's
employment for any reason other than Cause (as defined below),
Disability (as defined below), or Death by giving Executive at
least thirty (30) days prior written notice of the effective
date of termination. In the event Executive's employment
hereunder is terminated by the Company other than for Cause,
Disability or Death, Executive shall be entitled to receive
from Company all amounts specified below as follows:
i. Base Salary and Bonuses. Company shall pay or cause
to be paid within 15 days of the termination date in
a lump sum, an amount equal to Executive's Base
Salary and any accrued Bonuses as he would have
received such amounts during the period commencing on
the effective date of such termination and ending at
the latter of the Term of Employment or twelve (12)
months after the Termination Date (the "SALARY
CONTINUATION PERIOD").
ii. Benefits. During the first six months of the Salary
Continuation Period, Executive and his spouse,
dependents and beneficiaries shall be entitled to
continue to be covered by all group medical, health
and accident insurance or other such health care
arrangements in which Executive was a participant as
of the effective date of such termination pursuant to
this Subsection, at the same coverage level and on
the same terms and conditions which applied
immediately prior to the effective date of
Executive's termination of employment pursuant to
this Subsection, until Executive obtains alternative
comparable coverage under another group plan, which
coverage does not contain any pre-existing condition
exclusions or limitations. At the termination of the
benefits coverage under the preceding sentence,
Executive and his spouse, dependents and
beneficiaries shall be entitled to continuation
coverage pursuant to Section 4980B of the Internal
Revenue Code of 1986, as amended, Sections 601-608 of
the Employee Retirement Income Security Act of 1974,
as amended, and under any other applicable law, to
the extent required by such laws, as if Executive had
terminated employment with the Company on the date
such benefits coverage terminates.
iii. Stocks/Stock Options. Any unvested stock options,
stock appreciation rights, warrants, bonus units, or
comparable rights (collectively, "options") granted
or to be granted to Executive, and any shares or
other units (collectively "shares") granted or to be
granted to Executive, pursuant to any plan involving
or based upon equity in the Company, shall
automatically and fully vest in Executive (and any
and all conditions applicable thereto shall be deemed
satisfied). In addition, any options granted or to be
granted to Executive, vested or unvested, and all
shares of common stock of the Company owned by
Executive shall automatically double. Such options
shall be fully vested in accordance with this
3
4
subsection except the exercise price for such options
granted pursuant to this subsection shall be the
closing bid price for shares of common stock of the
Company on the Termination Date, and such shares of
common stock granted pursuant to this subsection
shall be deemed to be validly issued, fully paid, and
nonassessable.
(b) TERMINATION FOR CAUSE. The Company shall have the right to
terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of
termination (which effective date may, except as otherwise
provided below, be the date of such notice). If the Company
terminates Executive's employment for Cause, Executive shall
be paid his unpaid Base Salary accrued through the date of
termination, and the Company shall have no further obligation
hereunder from and after the effective date of termination
under this Subsection and shall have all other rights and
remedies available under this or any other agreement and at
law or in equity.
For purposes of this Agreement, "CAUSE" shall mean:
(i) theft, forgery, fraud, misappropriation,
embezzlement, moral turpitude or other act of
material misconduct against the Company or any of its
affiliates;
(ii) willful and knowing violation of any rules or
regulations of any governmental or regulatory body,
which is or is reasonably expected to be materially
injurious to the financial condition of the Company;
or
(iii) conviction of, or plea of guilty or nolo contendere
to, a felony or any crime of theft, forgery, fraud,
misappropriation, embezzlement, moral turpitude or
other act of material misconduct;
(iv) a material violation of any fiduciary duty owed to
the Company;
provided, however, that for any such event, activity or
omission in clause (iv) of this subsection, Executive shall be
given (A) prior written notification of the Company's intended
actions and a description of the alleged events, activities or
omissions giving rise thereto, and (B) with respect to those
events, activities or omissions for which a cure is reasonably
possible, a reasonable opportunity (of not less than thirty
(30) days) to cure such breach.
(c) TERMINATION ON ACCOUNT OF DEATH. In the event of Executive's
death while in the employ of the Company, his employment
hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the
date of termination. In addition, any other benefits payable
on behalf of Executive shall be determined under the Company's
insurance and other compensation and benefit plans and
programs then in effect in accordance with the terms of such
programs.
4
5
(d) TERMINATION ON ACCOUNT OF DISABILITY. To the extent not
prohibited by The Americans With Disabilities Act of 1990, if,
as a result of Executive's incapacity due to physical or
mental illness (as determined in good faith by a physician
acceptable to the Company and Executive), Executive is unable
to substantially render to the Company the services required
under this Agreement for more than ninety (90) days out of any
consecutive one hundred and eighty (180) day period or if a
physician acceptable to the Company advises the Company that
it is likely that Executive will be unable to return to the
performance of his duties for more than ninety (90) days out
of any consecutive one hundred and eighty (180) day period his
employment may be terminated for "DISABILITY." During any
period that Executive fails to perform his duties with the
Company as a result of incapacity due to physical or mental
illness, he shall continue to receive his Base Salary and
other benefits provided hereunder, together with all
compensation payable to him under the Company's disability
plan or program or other similar plan during such period,
until Executive's employment hereunder is terminated pursuant
to this subsection. Thereafter, Executive's benefits shall be
determined under the Company's retirement, insurance, and
other compensation and benefit plans and programs then in
effect, in accordance with the terms of such programs.
(e) TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive shall have
the right to terminate Executive's employment, without further
obligation or liability to Company, except that any
termination of Executive's employment under this Section 5(f)
shall have the same effect as a termination without cause by
Company under Section 5(a) above, upon the occurrence of any
one or more of the following events, which events shall be
deemed termination by Executive for "Good Reason":
i. CHANGE IN REPORTING. If Executive no longer reports
directly to the Board of Directors of Company.
ii. REDUCTION IN DUTIES OR TITLE. If Executive's duties
hereunder are diminished in any material respect or
Executive's title as Chief Executive Officer is
diminished without his prior written consent;
iii. OTHER MATERIAL BREACH. If Company willfully commits a
material breach of this Agreement with the actual
knowledge that its conduct constitutes a breach of
this Agreement;
iv. CHANGE IN LOCATION. If Executive's office is
re-located outside of the cities listed in Section 2
without his prior written consent;
v. EFFECTIVENESS OF NOTICE. Upon the failure to cure any
of the events/breaches set out in Section 5(b)(i)
through 5(b)(iv) within thirty (30) days after
Company's receipt of written notice from Executive
specifying the applicable events/breaches and
expressly referring to this Section 5(f) (the
"Initial Notice"), Executive shall have the right to
elect to terminate
5
6
his employment for Good Reason by giving a second
written notice (the "Second Notice") to Company to
such effect and referring to this Section 5(f);
provided, however, that with respect to any such
events/breaches that are capable of prospective cure,
if Company commences to effect such a cure within the
foregoing thirty (30) day period, Company shall be
permitted additional time to cure and not be deemed
in breach so long as it diligently continues to seek
to effect a cure. Executive shall be deemed to have
terminated his employment for Good Reason under this
Section 5(f) effective ten (10) days following Second
Notice.
6. CONFIDENTIAL INFORMATION, NON-SOLICITATION AND NON-COMPETITION.
(a) During the Term of Employment and thereafter, Executive shall
not, except as may be required to perform his duties hereunder
or as required by applicable law, disclose to others or use,
whether directly or indirectly, any Confidential Information
regarding the Company. "CONFIDENTIAL INFORMATION" shall mean
information about the Company, its subsidiaries and
affiliates, and their respective clients and customers that is
not available to the general public and that was learned by
Executive in the course of his employment by the Company,
including, but not limited to, any proprietary knowledge,
trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including
computer records) and the documents containing such
Confidential Information. Executive acknowledges that such
Confidential Information is specialized, unique in nature and
of great value to the Company, and that such information gives
the Company a competitive advantage. Upon the termination of
his employment for any reason whatsoever, Executive shall
promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential
Information.
(b) During the period that Executive is receiving payments under
this Agreement, Executive shall not, directly or indirectly in
any manner or capacity (e.g., as an advisor, principal, agent,
partner, officer, director, shareholder, employee, member of
any association or otherwise) engage in, work for, consult,
provide advice or assistance or otherwise participate in any
activity which is competitive with the business of the
Company. Executive further agrees that during such period he
will not assist or encourage any other person in carrying out
any activity that would be prohibited by the foregoing
provisions of this Section if such activity were carried out
by Executive and, in particular, Executive agrees that he will
not induce any employee of the Company to carry out any such
activity; provided, however, that the "beneficial ownership"
by Executive, either individually or as a member of a "group,"
as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than one
percent (1%) of the voting stock of any publicly held
corporation shall not be a violation of this Agreement. It is
further expressly agreed that the Company will or would suffer
irreparable injury if Executive were to compete with the
Company or any subsidiary or affiliate of the Company in
violation of this Agreement and that the Company would by
reason of
6
7
such competition be entitled to injunctive relief in a court
of appropriate jurisdiction, and Executive further consents
and stipulates to the entry of such injunctive relief in such
a court prohibiting Executive from competing with the Company
or any subsidiary or affiliate of the Company in violation of
this Agreement.
(c) During the period that Executive is receiving payments under
this Agreement and for one (1) year after such payments
terminate, Executive shall not, directly or indirectly,
influence or attempt to influence suppliers, customers or
affiliates of the Company to divert their business to any
competitor of the Company.
(d) Executive recognizes that he will possess confidential
information about other employees of the Company relating to
their education, experience, skills, abilities, compensation
and benefits, and interpersonal relationships with customers
of the Company. Executive recognizes that the information he
will possess about these other employees is not generally
known, is of substantial value to the Company in developing
its business and in securing and retaining customers, and will
be acquired by him because of his business position with the
Company. Executive agrees that, during the period that
Executive is receiving payments under this Agreement and for
one (1) year after such payments terminate, Executive will
not, directly or indirectly, solicit or recruit any employee
of the Company for the purpose of being employed by Executive
or by any competitor of the Company on whose behalf he is
acting as an agent, representative or employee and that he
will not convey any such confidential information or trade
secrets about other employees of the Company to any other
person.
(e) If it is determined by a court of competent jurisdiction in
any state that any restriction in this Section is excessive in
duration or scope or is unreasonable or unenforceable under
the laws of that state, it is the intention of the parties
that such restriction may be modified or amended by the court
to render it enforceable to the maximum extent permitted by
the law of that state.
7. CONSOLIDATION. MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER.
(a) In the event that, following the date hereof, directly or
indirectly, (x) the Company shall consolidate with, or merge
with and into, any other entity (other than a subsidiary of
the Company), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger, (y) any
person (other than a subsidiary of the Company) shall
consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of
such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares
of common stock of the Company shall be changed into or
exchanged for stock or other securities of any other entity or
cash or any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its subsidiaries shall
sell or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating
7
8
more than 50% of the assets, operating income, cash flow or
earning power of the Company and its subsidiaries (taken as a
whole) to any person(s) or entity(ies) (other than the Company
or any subsidiary of the Company), then, and in each such case
and except as contemplated by subsection (d), Executive shall
have been deemed terminated without cause for purposes of
Section 5(a)(iii), regardless of whether Executive remains
employed by Company or its survivor pursuant to this
Agreement, and any termination of Executive within twelve (12)
months of such consolidation or merger shall be deemed to be
without cause and the remaining provisions of Section 5(a)
shall be applicable.
(b) The Company shall not consummate any such consolidation,
merger, sale or transfer unless the surviving entity shall
have a sufficient number of authorized shares of its common
stock that have not been issued or reserved for issuance to
permit the exercise in full of the rights of Executive in
accordance with Section 5(a)(iii) and unless prior thereto the
Company and such surviving entity shall have executed and
delivered to the Executive an agreement acknowledging the
Company's or the surviving entity's obligation to, as soon as
practicable after the date of any Section 7 event, prepare and
file a registration statement under the Securities Act of 1933
(the "Act"), with respect to all shares of common stock owned
by Executive or to be acquired by Executive pursuant to any
option, and will use its best efforts to cause such
registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Act)
until Executive has sold all of his shares of common stock in
the Company or the surviving entity or Executive can sell of
his shares of common stock in the Company or the surviving
entity without such current registration statement.
(c) The provisions of this Section 7 shall similarly apply to
successive mergers or consolidations or sales or other
transfers.
8. DESIGNATED BENEFICIARY. In the event of the death of Executive while in
the employ of the Company, or at any time thereafter during which
amounts remain payable to Executive under SECTION 5, such payments
(other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive
payments under this Agreement following Executive's death by filing a
written beneficiary designation with the Company during Executive's
lifetime. Such beneficiary designation shall be in such form as may be
prescribed by the Company and may be amended from time to time or may
be revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such
as a trustee or a trust or the legal representative of an estate.
Unless otherwise provided by the beneficiary designation filed by
Executive, if all of the persons so designated die before Executive on
the occurrence of a contingency not contemplated in such beneficiary
designation, then the amounts payable under this Agreement shall be
paid to Executive's estate.
8
9
9. TAXES. All payments to be made to Executive under this Agreement will
be subject to any applicable withholding of federal, state and local
income and employment taxes.
10. RESOLUTION OF DISPUTES. If any dispute shall arise under or related to
this Agreement or the transactions contemplated hereby, other than
pursuant to and under Section 6, such dispute shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association (the "AAA"). Such dispute shall be settled by arbitration
in the City of Little Rock, Arkansas by three (3) arbitrators, one of
whom shall be appointed by Executive, one by the Company, and the third
by the first two arbitrators. If either party fails to appoint an
arbitrator within ten (10) days of a request in writing by the other
party to do so or if the first two arbitrators cannot agree on the
appointment of a third arbitrator within ten (10) days, then such
arbitrator shall be appointed in accordance with the rules of the AAA.
Except as to the selection of arbitrators which shall be as set forth
above, the arbitration shall be conducted promptly and expeditiously in
accordance with the rules of the AAA so as to enable the arbitrators to
render an award within sixty (60) days of the commencement of the
arbitration proceedings. The decision of the arbitrators shall be
binding upon the parties, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
The decision of the arbitrators shall include within the arbitration
award a recovery by the prevailing party or parties of its or their
expenses of arbitration, including the fees and expenses of the
arbitrators, other costs associated with the arbitration proceeding and
the reasonable attorneys' fees and expenses of the prevailing party or
parties incurred in connection with the arbitration.
11. ATTORNEYS' FEES. Except as otherwise provided herein, should either
party hereto or their successors retain counsel for the purpose of
enforcing, or preventing the breach of, any provision hereof,
including, but not limited to, by instituting any action or proceeding
in arbitration or a court to enforce any provision hereof or to enjoin
a breach of any provision of this Agreement, or for a declaration of
such party's rights or obligations under the Agreement, or for any
other remedy, whether in arbitration or in a court of law, then the
successful party shall be entitled to be reimbursed by the other party
for all costs and expenses incurred thereby, including, but not limited
to, reasonable fees and expenses of attorneys and expert witnesses,
including costs of appeal. If such successful party shall recover
judgment in any such action or proceeding, such costs, expenses and
fees may be included in and as part of such judgment. The successful
party shall be the party who is entitled to recover the costs of suit,
whether or not the suit proceeds to final judgment. If no costs are
awarded, the successful party shall be determined by the arbitrator or
court, as the case may be.
12. RELEASE. In exchange for the promises and the payments set forth in
Section 5(a) above, Executive covenants and agrees to release, acquit,
and forever discharge the Company of and from any and all claims,
injuries, demands and causes of action, including, but not limited to:
breach of contract, wages, severance pay, vacation benefits, bonuses,
defamation, claims arising under the Arkansas Civil Rights Act of 1993,
Title VII of the Civil Rights Act of 1964, as amended, Section 1981 of
the Civil Rights Act of 1866, the Americans with Disabilities Act, the
Family Medical Leave Act and the Age Discrimination Employment Act of
1967, as amended, which he may now have and which
9
10
he may ever have as a result of, arising out of, or by reason of: his
employment by the Company; the termination of his employment; any of
the Company's employment practices, acts or omissions; and any acts or
omissions of the Company. It is Executive's express desire to release
and waive each and every claim for injuries, damages and consequences,
known or unknown, developed or which might develop in the future
resulting from any practices, acts or omissions of the Company which
occurred prior to the effective date of any termination of this
Agreement pursuant to and in accordance with Section 5(a) hereof.
13. REVIEW PERIOD. Executive understands and agrees that he:
(a) Has a full 21 days within which to consider this Agreement
before executing it;
(b) Has carefully read and fully understands all of the provisions
of this Agreement;
(c) Is, through this Agreement, releasing the Company from any and
all claims he may have against them, including any and all
claims under state or federal securities laws;
(d) Knowingly and voluntarily agrees to all the terms set forth in
this Agreement;
(e) Knowingly and voluntarily intends to be legally bound by this
Agreement;
(f) Was advised and hereby is advised in writing to consider the
terms of this Agreement and consult with an attorney of his
choice prior to executing this Agreement;
(g) Has a full seven days following the execution of this
Agreement to revoke this Agreement and has been and hereby is
advised in writing that this Agreement shall not become
effective or enforceable until the revocation period has
expired; and
(h) Understands that claims or rights under the Age Discrimination
in Employment Act that may arise after the date this Agreement
is executed are not waived.
13. MISCELLANEOUS. This Agreement shall also be subject to the following
miscellaneous considerations:
(a) REPRESENTATIONS AND WARRANTIES.
(i) Executive represents and warrants to the Company that
he has the authorization, power and right to deliver,
execute and fully perform his obligations under this
Agreement in accordance with its terms. Executive
further represents and warrants that this Agreement
does not require any authorization, consent,
approval, exemption or other action by any other
party and does not (A) conflict with or result in the
breach of the terms, conditions or provisions of, (B)
constitute a default under, or (C) result in a
10
11
violation of any agreement, instrument, order,
judgment or decree to which Executive is subject.
Executive will, to the fullest extent permitted by
applicable law, as from time to time in effect,
indemnify the Company and hold the Company harmless
for any breach of the representations set forth in
this subparagraph (i).
(ii) The Company represents and warrants to Executive that
it has the authorization, power and right to deliver,
execute and fully perform its obligations under this
Agreement in accordance with its terms. The Company
further represents and warrants that this Agreement
does not require any authorization, consent,
approval, exemption or other action by any other
party and does not (A) conflict with or result in the
breach of the terms, conditions or provisions of, (B)
constitute a default under, or (C) result in a
violation of any agreement, instrument, order,
judgment or decree to which the Company is subject.
The Company will, to the fullest extent permitted by
applicable law, as from time to time in effect,
indemnify Executive and hold Executive harmless for
any breach of its representations set forth in this
subparagraph (ii).
(b) DIVISIBILITY OF THE AGREEMENT. If any provision of this
Agreement or any portion thereof is declared invalid, illegal,
or incapable of being enforced by any court of competent
jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full
force and effect.
(c) CHOICE OF LAW. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with
the internal laws of the State of Arkansas without reference
to the choice of law provisions of such State's law, except
with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to
or the subject of this Agreement, and as to those matters of
the law the jurisdiction under which the respective entity
derives its powers shall govern, and to the extent governed by
federal law.
(d) ASSIGNMENT. This Agreement shall be binding on and shall inure
to the benefit of the parties to it and their respective
heirs, legal representatives, successors and assigns, except
as otherwise provided herein. The Company may assign this
Agreement to any direct or indirect subsidiary or parent of
the Company or joint venture in which the Company has an
interest, or any successor (whether by merger, consolidation,
purchase or otherwise) to all or substantially all of the
stock, assets or business of the Company and this Agreement
shall be binding upon and inure to the benefit of such
successors and assigns; provided however that no such
assignment shall relieve Company of its obligations due to
Executive hereunder. Except as expressly provided herein,
Executive may not sell, transfer, assign, or pledge any of her
rights or interests pursuant to this Agreement.
(e) NO ABROGATION. Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under
benefit plans, agreements, or
11
12
arrangements of the Company to which he is a party or in which
he is a participant, including, but not limited to, any
Company-sponsored employee benefit plans. Provisions of this
Agreement shall not in any way abrogate Executive's rights
under such other plans, agreements, or arrangements.
(f) NOTICE. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly
given when personally delivered or one day after delivery to
an overnight air courier guaranteeing next day delivery,
addressed as follows:
If to Executive: Xxxxxx X. Xxxxxxx
000 Xxx Xxxxx Xx.
Xxxxxxxx, Xxxxxxxx 00000
If to the Company: Pet Quarters, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Niloo Xxxx Xxxx, President
With copies to: Xxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: C. Xxx Xxxxxxxx
or to such other address as any party may have furnished to
the others in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt.
(g) HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(h) WAIVER. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be deemed
a waiver of such term, covenant, or condition, nor shall any
waiver or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or
more times be deemed a waiver or relinquishment of such right
or power at any other time or times.
(i) EXECUTIVE'S ACKNOWLEDGMENT. Executive acknowledges (i) that he
has consulted with or has had the opportunity to consult with
independent counsel of his own choice concerning this
Agreement and has been advised to do so by the Company, and
(ii) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely
based on his own judgment.
12
13
(j) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
(k) ENTIRE AGREEMENT; AMENDMENT. This Agreement (i) contains a
complete statement of all the arrangements between the parties
with respect to Executive's employment by the Company, (ii)
supersedes all prior and existing negotiations and agreements
between the parties concerning Executive's employment and
(iii) can only be changed or modified pursuant to a written
instrument duly executed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE
-----------------------------------------
Xxxxxx X. Xxxxxxx
PET QUARTERS, INC.
By: -----------------------------------------
Xxxxx Xxxxxxx, CFO
13
