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EXHIBIT 10
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered this 16th day of March, 2001 (the "Effective Date") between PetMed
Express, Inc., a Florida corporation, whose principal place of business is 0000
XX 00 Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 (the "Company") and Menderes Akdag,
an individual whose address is 0000 XX 0 Xxxxx, Xxxx Xxxxx, XX 00000 (the
"Executive").
RECITALS
WHEREAS, 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 pets (the
"Business").
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company.
WHEREAS, the Company has established a valuable reputation and goodwill
in its business, with expertise in all aspects of the Business.
WHEREAS, the Executive, by virtue of the Executive's employment with
the Company, will 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.
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 employs the Executive, and the
Executive hereby accepts employment, upon the terms and conditions hereinafter
set forth.
3. AUTHORITY AND POWER DURING EMPLOYMENT PERIOD.
a. DUTIES AND RESPONSIBILITIES. During the term of this
Agreement, the Executive will serve as 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.
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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.
4. TERM. The Term of employment hereunder will commence on the
Effective Date as set forth above and on the third anniversary of the Effective
Date, and may be extended for additional one (1) year periods (each a "Renewal
Term") by written notice given by the Company to the Executive at least 60 days
before the expiration of the Term or the Renewal Term, as the case may be,
unless this Agreement shall have been terminated pursuant to Section 6 of this
Agreement.
5. COMPENSATION AND BENEFITS.
a. SALARY. The Executive shall be paid a base salary, payable
in accordance with the Company's policies from time to time for senior
executives, at an annual rate of One Hundred Fifty Thousand Dollars ($150,000)
during the period commencing on the Effective Date and ending on August 16,
2001, and thereafter during the Term of this Agreement at an annual rate of Two
Hundred Thousand Dollars ($200,000).
b. OPTIONS. The Executive shall be granted 750,000 incentive
stock options (the "Options") to purchase shares of the Company's Common Stock
at an exercise price of $.32 per share. Such Options are granted under the
Company's 1998 Stock Option Plan and pursuant to the form of Option attached
hereto as Exhibit A and incorporated herein by such reference. The Options shall
be exercisable from the date of vesting and shall vest, subject to the continued
employment of the Executive, (i) 187,500 Options on the Effective Date, (ii)
187,500 Options on the first anniversary of the Effective Date, (iii) 187,500
Options on the second anniversary of the Effective Date, and (iv) 187,500
Options on the third anniversary of the Effective Date. The Options shall expire
three (3) years from the date of vesting.
c. EXECUTIVE BENEFITS. The Executive shall be entitled to
participate in all benefit programs of the Company currently existing or
hereafter made available to executive and/or salaried employees including, but
not limited to, stock option plans, pension and other retirement plans, group
life insurance, hospitalization, surgical and major medical coverage, sick
leave, salary continuation, vacation and holidays, long-term disability, and
other fringe benefits.
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d. VACATION. During each fiscal year of the Company, the
Executive shall be entitled to such amount of vacation as determined by the
Board of Directors consistent with the Executive's position and length of
service to the Company.
e. 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) in performing
services hereunder, provided the Executive properly accounts therefor.
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 one (1) year 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 one (1) year 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
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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 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 three (3) months' prior written notice. During such three (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 and Executive Benefits he would
be entitled to receive under this Agreement for the balance of the Term of this
Agreement; and at the end of the three (3) month period, the Company shall pay
to the Executive a lump sum equal to one (1) times the Executive's annual Base
Salary, as of the date of termination.
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(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.
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; 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; or
(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
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there be any period to cure following the occurrence of two events described in
this Section 6f.
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, and all options theretofore granted to the Executive shall
immediately vest and remain exercisable until the later of one (1) year from the
Termination date or the original expiration date of the option.
(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
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Executive's services are principally performed is disposed of by the Company
pursuant to a partial or complete liquidation of the Company, a sale 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, and
all options theretofore granted to the Executive shall immediately vest and
remain exercisable until the later of one (1) year from the Termination date or
the original expiration date of the option.
(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.
7. COVENANT NOT TO COMPETE AND NON-DISCLOSURE OF INFORMATION.
a. COVENANT NOT TO COMPETE. Except as set forth in
Section 6d(2) of
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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 six (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 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.
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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; communications; 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.
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.
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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 consequently agrees,
upon proof of any such breach, to the granting of injunctive 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
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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.
12. COMPLETENESS AND MODIFICATION. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous
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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 notwithstanding, 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.
20. ENFORCEMENT. Should it become necessary for any party to institute
legal
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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 17th Judicial Circuit (or its successor) in and for Broward
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:
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Xxxx X. Xxxxx, M.D.
Witness: THE EXECUTIVE
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Menderes Akdag
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