SECOND AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this
"Agreement") is made and entered into as of the 17TH day of January, 2000 (the
"Effective Date"), between PetMed Express, Inc., a Florida corporation, whose
principal place of business is 0000 X.X. 00xx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx
00000 and any of its successors or affiliated companies (collectively, "the
Company") and Xxxx X. Xxxxx, M.D., an individual whose address is 0000 X.X. 00xx
Xxxxx, Xxxxxxxxxx Xxxxx, XX 00000 ("the Executive").
RECITALS
A. The Company is a Florida corporation and is principally engaged in
the business of marketing, distributing and selling prescription and
non-prescription pet medications and pet-related products for household pets
("the Business").
B. The Company presently employs the Executive and desires to continue
to employ the Executive and the Executive desires to continue in the employ of
the Company.
C. The Company has established a valuable reputation and goodwill in
its business, with expertise in all aspects of the Business.
D. The Executive, by virtue of the Executive's employment with the
Company has become familiar with and possessed with the manner, methods, trade
secrets and other confidential information pertaining to the Company's business,
including the Company's client base.
E. The Company and the Executive have previously entered into that
certain Amended and Restated Employment Agreement as of May 1, 1998 ("the
Original Agreement"), which is hereby amended in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and the Executive do hereby agree as follows:
1. Recitals. The above recitals are true, correct, and are herein
incorporated by reference.
2. Employment. The Company hereby continues the employment of the
Executive, and the Executive agrees to continue in the employment of the
Company, upon the terms and conditions set forth below.
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3. Authority and Power During Employment Period.
a. Duties and Responsibilities. During the term of this
Agreement, the Executive will serve as President and Chief Executive
Officer of the Company and shall have general executive operating
supervision over the property, business and affairs of the Company, its
subsidiaries and divisions, subject to the guidelines and direction of
the Board of Directors of the Company. It is further the intention of
the parties that at all times during the "Term," as hereinafter
defined, of the Agreement, the Executive shall serve as Chairman of the
Board of Directors of the Company and in accordance with the Bylaws of
the Company.
b. Time Devoted. Throughout the term of the Agreement, the
Executive shall devote substantially all of the Executive's business
time and attention to the business and affairs of the Company
consistent with the Executive's senior executive position with the
Company, except for reasonable vacations and except for illness or
incapacity, but nothing in the Agreement shall preclude the Executive
from engaging in personal business, including as a member of the board
of directors of related companies, charitable and community affairs,
provided that such activities do not interfere with the regular
performance of the Executive's duties and responsibilities under this
Agreement.
c. Additional Responsibilities of Executive. Executive agrees
to be bound by the Executive's Guidelines, if applicable, a copy of
which has been provided to the Company (or to the extent that such
Guidelines have not yet been formulated, at such time as such
Guidelines are adopted by the Company).
4. Term. The Term of employment hereunder will commence on the date as
set forth above and terminate two (2) years from the Effective Date, and such
term shall automatically be extended for each successive year thereafter unless
(1) the parties mutually agree in writing to alter or amend the terms of the
Agreement; or (2) one of the parties exercises its right, pursuant to Section 6
herein, to terminate this employment relationship.
5. Compensation and Benefits.
a. Base Salary. For all services rendered by the Executive
pursuant to the terms of this Agreement and in consideration of the
execution of this Agreement by the Executive, the Executive shall be
paid a salary, in accordance with the Company's policies from time to
time for senior executives, at an annual rate of $150,000, subject to
increase from time to time upon the review and determination of the
Board of Directors, which review shall be conducted no less frequent
than annually ("the Base Salary").
b. Bonuses and Options. The Executive will be entitled to
receive such bonuses and options as the Board of Directors may
determine from time to time
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c. Performance-based Bonus. On the earlier of (i) the fiscal
year in which the Company should report (a) Revenues (as hereinafter
defined) of at least twenty million dollars ($20,000,000) and (b)
Income From Operations (as hereinafter defined) of at least two million
dollars ($2,000,000) for any fiscal year on or before the fiscal year
ending March 31, 2000 or (ii) March 31, 2001, the Executive shall be
entitled to a performance-based bonus of options to purchase up to an
additional 600,000 shares of Common Stock of the Company. Such options,
which shall be exercisable for a period of five (5) years from the date
of grant at an exercise price of $1.25 per share, shall be granted
under the Company's 1998 Stock Option Plan. For the purposes of this
Agreement, "Revenues" shall mean the total gross revenues of the
Company from all sources and "Income From Operations" shall mean the
Revenues less the cost of the Revenues and all selling, general and
administrative expenses as reflected on the Company's audited financial
statements for the periods therein. The audited financial statements of
the Company, accompanied by the accountant's report of the Company's
then principal independent accountants for such fiscal year, shall be
conclusive as to the determination of the satisfaction of the
performance based criteria. In the event the Company should meet such
performance based criteria, the options shall be granted to the
Executive on the date the audited financial statements are issued by
the Company's principal independent accountants.
d. Executive Benefits. The Executive shall be entitled to
participate in all benefit programs of the Company currently existing
or hereafter made available to executives and/or other salaried
employees, at the Executive's sole option, including, but not limited
to, pension and other retirement plans, group life insurance,
hospitalization, surgical and major medical coverage, sick leave,
compensation continuation, vacation and holidays, cellular telephone
and all related costs and expenses, long-term disability, and other
fringe benefits ("the Executive Benefits").
e. Vacation. During each fiscal year of the Company, the
Executive shall be entitled to five (5) weeks of vacation time and to
utilize such vacation as the Executive shall determine; provided
however, that the Executive shall evidence reasonable judgment with
regard to appropriate vacation scheduling.
f. Business Expense Reimbursement. During the Term of
employment, the Executive shall be entitled to receive proper
reimbursement for all reasonable, out-of-pocket expenses incurred by
the Executive (in accordance with the policies and procedures
established by the Company for its senior executive officers) in
performing services hereunder, provided the Executive properly accounts
therefor.
g. Automobile Expense. The Company shall provide the Executive
with an automobile of Executive's choice. The Company shall also be
responsible for
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all expenses in connection with such automobile including, but not
limited to, maintenance, insurance and gas.
6. Termination.
a. Death. This Agreement will terminate upon the death of the
Executive; however, the Executive's Base Salary shall be paid to the
Executive's designated beneficiary, or, in the absence of such
designation, to the estate or other legal representative of the
Executive, for a period of six (6) months from and after the date of
death at the annual rate in effect immediately prior to his death.
Other death benefits will be determined in accordance with the terms of
the Company's benefit programs and plans.
b. Disability.
(1) The Executive's employment will terminate in the
event of his disability, upon the first day of the month
following the determination of disability as provided below.
Following such a termination, the Executive shall be entitled
to compensation in accordance with the Company's disability
compensation practice for senior executives, including any
separate arrangement or policy covering the Executive, but in
all events the Executive shall continue to receive his Base
Salary, at the annual rate in effect immediately prior to the
commencement of disability, for the 6 months following the
termination.. Any amounts provided for in this Section 6b
shall not be offset by other long-term disability benefits
provided to the Executive by the Company or Social Security.
(2) "Disability," for the purposes of this Agreement,
shall be deemed to have occurred if (A) the Executive is
unable, by reason of a physical or mental condition, to
perform his duties under this Agreement for an aggregate of
180 days in any 12-month period or (B) the Executive has a
guardian of the person or estate appointed by a court of
competent jurisdiction.
Anything herein to the contrary notwithstanding, if, following
a termination of employment due to disability, the Executive
becomes re-employed, whether as an executive or a consultant,
any compensation, annual incentive payments or other benefits
earned by the Executive from such employment shall not be
offset against any compensation continuation due to the
Executive hereunder.
c. Termination by the Company for Cause.
(1) Nothing herein shall prevent the Company from
terminating Executive for "Cause," as hereinafter defined. The
Executive shall continue
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to receive compensation only for the period ending with the
date of such termination as provided in this Section 6c. Any
rights and benefits the Executive may have in respect of any
other compensation shall be determined in accordance with the
terms of such other compensation arrangements or such plans or
programs.
(2) "Cause" shall mean (A) committing or
participating in an injurious act of fraud, gross neglect,
misrepresentation, embezzlement or dishonesty against the
Company; (B) committing or participating in any other
injurious act or omission wantonly, willfully, recklessly or
in a manner which was grossly negligent against the Company;
(C) engaging in a criminal enterprise involving moral
turpitude; (D) conviction for a felony under the laws of the
United States or any state thereof; (E) loss of any state or
federal license required for the Executive to perform the
Executive's material duties or responsibilities for the
Company; or (F) any assignment of this Agreement in violation
of Section 14 of this Agreement;
(3) Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to the Executive a notice of termination stating
that the Executive committed one of the types of conduct set
forth in Section 6c(2) of this Agreement and specifying the
particulars thereof and the Executive shall be given a thirty
(30) day period to cure such conduct set forth in Section
6c(2).
d. Termination by the Company Other than for Cause.
(1) The foregoing notwithstanding, the Company may
terminate the Executive's employment for whatever reason it
deems appropriate; provided, however, that in the event such
termination is not based on Cause, as provided in Section 6c
above, the Company may terminate this Agreement upon giving 3
months' prior written notice. During such 3 month period, the
Executive shall continue to perform the Executive's duties
pursuant to this Agreement. Notwithstanding any such
termination, the Company shall continue to pay to the
Executive the Base Salary, Executive Benefits and Automobile
Expense he would be entitled to receive under this Agreement
for the balance of the Term of this Agreement; and at the end
of the 3 month period, the Company shall pay to the Executive
a lump sum equal to the Executive's annual Base Salary, as of
the date of termination.
(2) In the event that the Executive's employment with
the Company is terminated pursuant to this Section 6d, Section
6f or Section 6g, Section 7a of this Agreement and all
references thereto shall be inapplicable as to the Executive
and the Company.
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e. Voluntary Termination. If the Executive terminates the
Executive's employment on the Executive's own volition (except as
provided in Section 6f and/or Section 6g) prior to the expiration of
the Term of this Agreement, including any renewals thereof, such
termination shall constitute a voluntary termination and in such event
the Executive shall be limited to the same rights and benefits as
provided in connection with a termination for Cause as provided in
Section 6c.
f. Constructive Termination of Employment. A termination by
the Company without Cause under Section 6d shall be deemed to have
occurred upon the occurrence of one or more of the following events
without the express written consent of the Executive:
(1) a significant change in the nature or scope of
the authorities, powers, functions, duties or responsibilities
attached to Executive's position as described in Section 3, of
failure of the Executive to be elected to the Board of
Directors or
(2) a material breach of the Agreement by the
Company; or
(3) a material reduction of the Executive's benefits
under any employee benefit plan, program or arrangement (for
Executive individually or as part of a group) of the Company
as then in effect or as in effect on the Effective Date of the
Agreement, which reduction shall not be effectuated for
similarly situated employees of the Company; or
(4) failure by a successor company to assume the
obligations under the Agreement.
(5) a change in the Executive's principal office to a
location outside Palm Beach or Broward County, Florida.
Anything herein to the contrary notwithstanding, the Executive
shall give written notice to the Board of Directors of the
Company that the Executive believes an event has occurred
which would result in a Constructive Termination of the
Executive's employment under this Section 6f, which written
notice shall specify the particular act or acts, on the basis
of which the Executive intends to so terminate the Executive's
employment, and the Company shall then be given the
opportunity, within fifteen (15) days of its receipt of such
notice, to cure said event; provided, however, there shall be
no period permitted to cure a second occurrence of the same
event and in no event will there be any period to cure
following the occurrence of two events described in this
Section 6f.
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g. Termination Following a Change of Control.
(1) In the event that a Change in Control (as
hereinafter defined), of the Company shall occur at any time
during the Term hereof, the Executive shall have the right to
terminate the Executive's employment under this Agreement upon
thirty (30) days written notice given at any time within one
(1) year after the occurrence of such event, and such
termination of the Executive's employment with the Company
pursuant to this Section 6g(1), then, in any such event, such
termination shall be deemed to be a Termination by the Company
Other than for Cause and the Executive shall be entitled to
such Compensation and Benefits as set forth in Subsection 6d
of this Agreement.
(2) For purposes of this Agreement, a "Change in
Control" of the Company shall mean a change in control (A) as
set forth in Section 280G of the Internal Revenue Code or (B)
of a nature that would be required to be reported in response
to Item 1 of the current report on Form 8K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided
that, without limitation, such a change in control shall be
deemed to have occurred at such time as:
(A) any "person", other than the Executive,
(as such term is used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of
the combined voting power of the Company's
outstanding securities then having the right to vote
at elections of directors; or,
(B) the individuals who at the commencement
date of the Agreement constitute the Board of
Directors cease for any reason to constitute a
majority thereof unless the election, or nomination
for election, of each new director was approved by a
vote of at least two thirds of the directors then in
office who were directors at the commencement of the
Agreement; or
(C) there is a failure to elect three or
more (or such number of directors as would constitute
a majority of the Board of Directors) candidates
nominated by management of the Company to the Board
of Directors; or
(D) the business of the Company for which
the Executive's services are principally performed is
disposed of by the Company pursuant to a partial or
complete liquidation of the Company, a sale
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of assets (including stock of a subsidiary of the
Company) or otherwise.
Anything herein to the contrary notwithstanding, this
Section 6g(2) will not apply where the Executive
gives the Executive's explicit written waiver stating
that for the purposes of this Section 6g(2), a Change
in Control shall not be deemed to have occurred. The
Executive's participation in any negotiations or
other matters in relation to a Change in Control
shall in no way constitute such a waiver which can
only be given by an explicit written waiver as
provided in the preceding sentence.
An "Attempted Change in Control" shall be deemed to
have occurred if any substantial attempt, accompanied
by significant work efforts and expenditures of
money, is made to accomplish a Change in Control, as
described in subparagraphs (A), (B), (C) or (D) above
whether or not such attempt is made with the approval
of a majority of the then current members of the
Board of Directors.
(3) If, within twelve (12) months of any Change in
Control of the Company or any Attempted Change in Control of
the Company, the Company terminates the employment of the
Executive under this Agreement, for any reason other than for
Cause as defined in Section 6c, or the Executive's employment
is constructively terminated as defined in Section 6g(4),
then, in any such event, such termination shall be deemed to
be a Termination by the Company Other than for Cause and the
Executive shall be entitled to such Compensation and Benefits
as set forth in Subsection 6d of this Agreement.
(4) Anything in this Section 6g to the contrary
notwithstanding, in no event will any action or non-action by
the Executive at any time prior to the first anniversary date
of the applicable Change in Control or Attempted Change in
Control (including any action or non-action prior to the
effective date of this Agreement) be deemed consent to any of
the events described in this Section 6g.
(5) Anything herein to the contrary notwithstanding,
if the circumstances giving rise to an Attempted Change in
Control are included in those circumstances giving rise to an
actual Change in Control the twelve (12) month period under
this Section 6 will be deemed to have recommenced on the date
the actual Change in Control occurred.
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7. Covenant Not to Compete and Non-Disclosure of Information.
a. Covenant Not to Compete. Except as set forth in Section
6d(2) of this Agreement, the Executive acknowledges and recognizes the
highly competitive nature of the Company's business and the goodwill,
continued patronage, and specifically the names and addresses of the
Company's Clients (as hereinafter defined) constitute a substantial
asset of the Company having been acquired through considerable time,
money and effort. Accordingly, in consideration of the execution of
this Agreement, the Executive agrees to the following:
(1) That during the Restricted Period (as hereinafter
defined) and within the Restricted Area (as hereinafter
defined), the Executive will not, individually or in
conjunction with others, directly or indirectly, engage in any
Business Activities (as hereinafter defined), whether as an
officer, director, proprietor, employer, partner, independent
contractor, investor (other than as a holder solely as an
investment of less than one percent (1%) of the outstanding
capital stock of a publicly traded corporation), consultant,
advisor, agent or otherwise.
(2) That during the Restricted Period and within the
Restricted Area, the Executive will not, directly or
indirectly, compete with the Company by soliciting, inducing
or influencing any of the Company's clients which have a
business relationship with the Company at the time during the
Restricted Period to discontinue or reduce the extent of such
relationship with the Company.
(3) That during the Restricted Period and within the
Restricted Area, the Executive will not (A) directly or
indirectly recruit, solicit or otherwise influence any
employee or agent of the Company to discontinue such
employment or agency relationship with the Company, or (B)
employ or seek to employ, or cause or permit any business
which competes directly or indirectly with the Business
Activities of the Company (the "Competitive Business") to
employ or seek to employ for any Competitive Business any
person who is then (or was at any time within 6 months prior
to the date Executive or the Competitive Business employs or
seeks to employ such person) employed by the Company.
b. Non-Disclosure of Information. The Executive acknowledges
that the Company's trade secrets, private or secret processes, methods
and ideas, as they exist from time to time, customer lists and
information concerning the Company's products, services, training
methods, development, technical information, marketing activities and
procedures, credit and financial data concerning the Company and/or the
Company's Clients, and (the "Proprietary Information") are valuable,
special and unique assets of the Company, access to and knowledge of
which are essential
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to the performance of the Executive hereunder. In light of the highly
competitive nature of the industry in which the Company's business is
conducted, the Executive agrees that all Proprietary Information,
heretofore or in the future obtained by the Executive as a result of
the Executive's association with the Company shall be considered
confidential.
In recognition of this fact, the Executive agrees that the
Executive, during the Restricted Period, will not use or disclose any
of such Proprietary Information for the Executive's own purposes or for
the benefit of any person or other entity or organization (except the
Company) under any circumstances unless such Proprietary Information
has been publicly disclosed generally or, unless upon written advice of
legal counsel reasonably satisfactory to the Company, the Executive is
legally required to disclose such Proprietary Information. Documents
(as hereinafter defined) prepared by the Executive or that come into
the Executive's possession during the Executive's association with the
Company are and remain the property of the Company, and when this
Agreement terminates, such Documents shall be returned to the Company
at the Company's principal place of business, as provided in the Notice
provision (Section 10) of this Agreement.
c. Documents. "Documents" shall mean all original written,
recorded, or graphic matters whatsoever, and any and all copies
thereof, including, but not limited to: papers; books; records;
tangible things; correspondence; communica tions; telex messages;
memoranda; work-papers; reports; affidavits; statements; summaries;
analyses; evaluations; client records and information; agreements;
agendas; advertisements; instructions; charges; manuals; brochures;
publications; directories; industry lists; schedules; price lists;
client lists; statistical records; training manuals; computer
printouts; books of account, records and invoices reflecting business
operations; all things similar to any of the foregoing however
denominated. In all cases where originals are not available, the term
"Documents" shall also mean identical copies of original documents or
non-identical copies thereof.
d. Company's Clients. The "Company's Clients" shall be deemed
to be any persons, partnerships, corporations, professional
associations or other organizations for whom the Company has performed
Business Activities.
e. Restrictive Period. The "Restrictive Period" shall be
deemed to be eighteen (18) months following termination of this
Agreement, except as set forth in Section 6g(2) of this Agreement.
f. Restricted Area. The Restricted Area shall be deemed to
mean within Broward County, Dade County, Monroe County and Palm Beach
County, Florida and within any other county of any state in which the
Company is providing service at the time of termination.
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g. Business Activities. "Business Activities" shall be deemed
to include any business activities concerning marketing, distributing
and selling prescription and non-prescription medications for pets and
other pet-related products provided by the Company, and any additional
activities which the Company or any of its affiliates may engage in
during the 12 months prior to the termination of Executive's
employment.
h. Covenants as Essential Elements of this Agreement. It is
understood by and between the parties hereto that the foregoing
covenants contained in Sections 7a and b are essential elements of this
Agreement, and that but for the agreement by the Executive to comply
with such covenants, the Company would not have agreed to enter into
this Agreement. Such covenants by the Executive shall be construed to
be agreements independent of any other provisions of this Agreement.
The existence of any other claim or cause of action, whether predicated
on any other provision in this Agreement, or otherwise, as a result of
the relationship between the parties shall not constitute a defense to
the enforcement of such covenants against the Executive.
i. Survival After Termination of Agreement. Notwithstanding
anything to the contrary contained in this Agreement, the covenants in
Sections 7a and b shall survive the termination of this Agreement and
the Executive's employment with the Company.
j. Remedies.
(1) The Executive acknowledges and agrees that the
Company's remedy at law for a breach or threatened breach of
any of the provisions of Section 7a or b herein would be
inadequate and the breach shall be per se deemed as causing
irreparable harm to the Company. In recognition of this fact,
in the event of a breach by the Executive of any of the
provisions of Section 7a or b, the Executive agrees that, in
addition to any remedy at law available to the Company,
including, but not limited to monetary damages, all rights of
the Executive to payment or otherwise under this Agreement and
all amounts then or thereafter due to the Executive from the
Company under this Agreement may be terminated and the
Company, without posting any bond, shall be entitled to
obtain, and the Executive agrees not to oppose the Company's
request for equitable relief in the form of specific
performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may
then be available to the Company.
(2) The Executive acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent
injunction merely prohibiting the use of Proprietary
Information would not be an adequate remedy upon breach or
threatened breach of Section 7a or b and conse quently agrees,
upon proof of any such breach, to the granting of injunctive
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relief prohibiting any form of competition with the Company.
Nothing herein contained shall be construed as prohibiting the
Company from pursuing any other remedies available to it for
such breach or threatened breach.
8. Indemnification. The Executive shall continue to be covered by the
Articles of Incorporation and/or the Bylaws of the Company with respect to
matters occurring on or prior to the date of termination of the Executive's
employment with the Company, subject to all the provisions of Florida and
Federal law and the Articles of Incorporation and Bylaws of the Company then in
effect. Such reasonable expenses, including attorneys' fees, that may be covered
by the Articles of Incorporation and/or Bylaws of the Company shall be paid by
the Company on a current basis in accordance with such provision, the Company's
Articles of Incorporation and Florida law. To the extent that any such payments
by the Company pursuant to the Company's Articles of Incorporation and/or Bylaws
may be subject to repayment by the Executive pursuant to the provisions of the
Company's Articles of Incorporation or Bylaws, or pursuant to Florida or Federal
law, such repayment shall be due and payable by the Executive to the Company
within twelve (12) months after the termination of all proceedings, if any,
which relate to such repayment and to the Company's affairs for the period prior
to the date of termination of the Executive's employment with the Company and as
to which Executive has been covered by such applicable provisions.
9. Withholding. Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to the Executive or the Executive's
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Company may reasonably
determine it should withhold pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Company may accept other arrangements
pursuant to which it is satisfied that such tax and other payroll obligations
will be satisfied in a manner complying with applicable law or regulation.
10. Notices. Any notice required or permitted to be given under the
terms of this Agreement shall be sufficient if in writing and if sent postage
prepaid by registered or certified mail, return receipt requested; by overnight
delivery; by courier; or by confirmed telecopy, in the case of the Executive to
the Executive's last place of business or residence as shown on the records of
the Company, or in the case of the Company to its principal office as set forth
in the first paragraph of this Agreement, or at such other place as it may
designate.
11. Waiver. Unless agreed in writing, the failure of either party, at
any time, to require performance by the other of any provisions hereunder shall
not affect its right thereafter to enforce the same, nor shall a waiver by
either party of any breach of any provision hereof be taken or held to be a
waiver of any other preceding or succeeding breach of any term or provision of
this Agreement. No extension of time for the performance of any obligation or
act shall be deemed to be an extension of time for the performance of any other
obligation or act hereunder.
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12. Completeness and Modification. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the Employment Agreement. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
parties or, in the case of a waiver, by the party to be charged.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute but one agreement.
14. Binding Effect/Assignment. This Agreement shall be binding upon the
parties hereto, their heirs, legal representatives, successors and assigns. This
Agreement shall not be assignable by the Executive but shall be assignable by
the Company in connection with the sale, transfer or other disposition of its
business or to any of the Company's affiliates controlled by or under common
control with the Company.
15. Governing Law. This Agreement shall become valid when executed and
accepted by Company. The parties agree that it shall be deemed made and entered
into in the State of Florida and shall be governed and construed under and in
accordance with the laws of the State of Florida. Anything in this Agreement to
the contrary notwithstand ing, the Executive shall conduct the Executive's
business in a lawful manner and faithfully comply with applicable laws or
regulations of the state, city or other political subdivision in which the
Executive is located.
16. Further Assurances. All parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
17. Headings. The headings of the sections are for convenience only and
shall not control or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
18. Survival. Any termination of this Agreement shall not, however,
affect the ongoing provisions of this Agreement which shall survive such
termination in accordance with their terms.
19. Severability. The invalidity or unenforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
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20. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs.
21. Venue. Company and Executive acknowledge and agree that the U.S.
District for the Southern District of Florida, or if such court lacks
jurisdiction, the 15th Judicial Circuit (or its successor) in and for Palm Beach
County, Florida, shall be the venue and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly or indirectly, under
or in connection with this Agreement and the parties further agree that, in the
event of litigation arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
22. Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ ALL OF THE TERMS OF THIS
AGREEMENT, UNDERSTANDS THE AGREEMENT, AND AGREES TO ABIDE BY ITS TERMS AND
CONDITIONS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of date set
forth in the first paragraph of this Agreement.
Witness: THE COMPANY:
PETMED EXPRESS, INC.
-------------------------- By: ---------------------------------
Name:
--------------------------------
Its:
--------------------------------
Witness: THE EXECUTIVE
/s/ Xxxx X. Xxxxx, M.D.
-------------------------- -------------------------------------
Xxxx X. Xxxxx, M.D.
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