EXHIBIT 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Amended Agreement")
is made and entered into as of the 27th day of November, 2001, by and between
VCA Antech, Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxx,
an individual ("Officer").
R E C I T A L S
A. Officer is currently employed as Chairman of the Board, Chief
Executive Officer and President of the Company pursuant to an Employment
Agreement (the "Employment Agreement") between the Company and Officer dated as
of September 20, 2000.
B. The Company and Officer desire to amend and restate the Employment
Agreement regarding the terms and conditions of Officer's employment by the
Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms, covenants and conditions contained herein, the Company and Officer agree
as follows:
1. EMPLOYMENT.
Company hereby employs Officer, and Officer hereby accepts such
employment, as Chairman of the Board, Chief Executive Officer and President of
the Company, on the terms and subject to the conditions set forth herein.
2. CAPACITY AND DUTIES.
2.1 Officer shall serve the Company as its Chairman of the Board, Chief
Executive Officer and President, and shall report directly to the Board of
Directors of the Company (the "Board of Directors").
2.2 Subject to the direction and control of the Board of Directors,
Officer shall have the full authority and responsibility to operate and manage,
on a day-to-day basis, the business and affairs of the Company, and shall
perform such other duties and responsibilities as are prescribed by the Bylaws
of the Company and which are customarily vested in the office of chief executive
officer of a corporation.
2.3 Officer shall devote his business time, energy and efforts
faithfully and diligently to promote the Company's interests.
2.4 The terms of this Section 2 shall not prevent Officer from investing
or otherwise managing his assets in such form or manner as he chooses and
spending such time, whether or not during business hours, as he deems necessary
to manage his investments, so long as he is able to fulfill his duties pursuant
to Section 2 above.
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2.5 Except for routine travel incident to the business of the Company,
Officer shall perform his duties and obligations under this Amended Agreement
principally from an office provided by the Company in Los Angeles, California or
the surrounding area.
3. TERM.
This Amended Agreement shall be effective as of the date hereof (the
"Effective Date") and shall govern Officer's employment from and after such
date. As of any given date (the "Date of Determination"), Officer's employment
shall terminate on the fifth anniversary of the Date of Determination, unless
sooner terminated in accordance with the provisions of this Amended Agreement or
extended by an amendment executed by the Company and the Officer (the "Term").
Accordingly, there shall always for all purposes be a minimum of at least five
years remaining on the Term under this Amended Agreement.
4. COMPENSATION.
4.1 BASE SALARY.
4.1.1 As compensation for services rendered under this Amended
Agreement, the Company shall pay to Officer a base salary (the "Base Salary")
computed in accordance with Section 4.1.2 below during the Term, payable in
accordance with the normal payroll procedures of the Company.
4.1.2 During the Term, Officer's Base Salary shall be $520,000 and shall
be adjusted as provided in this Section. Commencing on January 1, 2002 and on
each anniversary thereafter, or from time to time at the sole discretion of the
Compensation Committee of the Board of Directors (the "Compensation Committee"),
Officer's Base Salary shall be reviewed by the Compensation Committee and may be
increased, but may never be decreased, in the sole discretion of the
Compensation Committee. In determining whether to increase Officer's Base
Salary, the Compensation Committee may engage a reputable compensation
consulting firm to determine comparable compensation packages provided to
executives in similarly situated companies.
4.1.3 The Company may deduct from the Base Salary amounts sufficient to
cover applicable federal, state and/or local income tax withholdings and any
other amounts which the Company is required to withhold by applicable law.
4.2 CASH BONUS PLAN. The Compensation Committee shall adopt a cash bonus
plan designed to provide Officer an opportunity to earn annual cash bonuses
during each calendar year during his employment which, when added to Officer's
Base Salary, shall provide Officer a level of compensation comparable to
compensation generally prevailing for other chief executive officers of publicly
traded companies which are comparable to the Company. The factors to be used to
select which companies are comparable to that of the Company shall include, but
not be limited to, industry group, revenues, operating income, growth rate,
number of employees and location. The annual performance goals to be met (the
"Annual Performance Goal") in order to earn portions or all of the bonus
provided under the plan shall be determined through consultation between the
Officer and the Compensation Committee. if requested by the Compensation
Committee or Officer, the Company shall retain a reputable, nationally
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recognized compensation consultant to assist the Compensation Committee in
identifying comparable companies and to make recommendations regarding the
structure and amount of the cash bonus plan. The amount of the cash bonus for
any particular calendar year shall be determined as follows: (i) if Officer
substantially achieves the Annual Performance Goal for such calendar year,
Officer shall receive a cash bonus of at least 50% of the Officer's Base Salary
for such calendar year; and (ii) if Officer exceeds the Annual Performance Goal
for such calendar year, Officer shall receive a cash bonus between 50% and 100%
of the Officer's Base Salary for such calendar year. If this Amended Agreement
is terminated in the middle of a calendar year, Officer shall receive a cash
bonus for services rendered through the Termination Date (as defined below)
equal to the cash bonus he would have received for the entire calendar year, pro
rated through the Termination Date. All cash bonuses hereunder shall be paid to
Officer within five business days following the date the audited consolidated
financial statements for the Company for the applicable calendar year become
available.
4.3 STOCK OPTIONS. All options granted to Officer after the Effective
Date, whether pursuant to a Company Stock Option Plan or otherwise, shall vest
in 24 equal monthly installments commencing on the first day of each month
following the month in which such options are granted. All options to purchase
the Company's Common Stock currently outstanding or which may be granted to
Officer whether pursuant to a Company Stock Option Plan or otherwise and
notwithstanding the provisions of any other agreement to the contrary, may be
exercised by Officer or by Officer's family by delivery of a promissory note in
the amount of the total exercise price of the option (the "Exercise Price"). The
promissory note shall bear interest at the then current thirty year U.S.
treasury bond rate, shall be nonrecourse except to the security referred to in
the following clause, shall be secured by the common Stock of the Company so
purchased, and shall be payable in full (principal and interest) on the fourth
anniversary of the date of the purchase of the shares. Notwithstanding the
foregoing, Officer shall apply all proceeds from the sale of the shares so
purchased by delivery of a promissory note to the repayment of principal and
interest outstanding under the note until all principal and interest is paid in
full. The Company shall maintain an effective registration statement covering
the shares underlying the options granted to Officer whether pursuant to a
Company Stock Option Plan or otherwise.
4.4 BENEFITS.
4.4.1 VACATION. Officer shall be entitled to five weeks paid vacation
for each calendar year during Officer's employment; provided, however, that
vacation shall only be taken at such times as not to interfere with the
necessary performance of Officer's duties and obligations under this Amended
Agreement.
4.4.2 AUTOMOBILE. The Company shall provide Officer with the use of a
luxury automobile that is selected by Officer and approved by the Compensation
Committee, the cost (the "Automobile Cost") of which during the first year of
the Term shall not be less than the cost that the Company currently provides for
Officer's use of an automobile. Commencing January 1, 2002 and annually
thereafter, the Automobile Cost may, at Officer's sole discretion, be increased
5% per annum. On the earlier of significant damage or destruction or attaining
two years of age, the Company shall replace such automobile with a new
automobile selected by Officer and approved by the Compensation Committee. The
Company shall pay all costs of
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insurance, repair, maintenance and operation of such automobile. At the end of
the two-year period referred to herein (or termination of employment, if
earlier), Officer may, but is not obligated to, purchase the automobile for the
book value of the automobile on the Company's financial records.
4.4.3 CLUB MEMBERSHIPS. The Company shall reimburse Officer for the
initiation and monthly dues for Officer's membership in two health clubs and one
country club selected by Officer, provided the aggregate of such dues shall not
exceed $1,500 per month during the first year of the Term. Commencing January 1,
2002, and continuing annually thereafter, such monthly dues may, at Officer's
sole discretion, increase 5% per annum.
4.4.4 OTHER BENEFITS; INSURANCE. During the term of Officer's employment
under this Amended Agreement, if and to the extent eligible, Officer shall be
entitled to participate in all operative Officer benefit and welfare plans of
the Company then in effect ("Company Officer Benefit Plans"), including, to the
extent then in effect, group life, medical, disability and other insurance
plans, all on the same basis generally applicable to the executives of the
Company; provided, however, that nothing contained in this Section 4.4.4 shall,
in any manner whatsoever, directly or indirectly, require or otherwise prohibit
the Company from amending, modifying, curtailing, discontinuing or otherwise
terminating, any Company Officer Benefit Plan at any time (whether during or
after the Term) except that the Company will at all times during the Term and
any severance period referred to in Section 8 or 9 hereof maintain medical
insurance (including Exec-U-Care Medical Reimbursement Insurance or a
substantially similar policy) covering Officer and his dependents with benefits
at least as favorable as those provided by the Company to its executives as of
the date of termination. In addition to, and not in lieu of, any Company Officer
Benefit Plan available to Officer during the Term of Officer's employment
hereunder, the Company shall provide Officer supplemental retirement benefits
pursuant to a separate "Supplemental Executive Retirement Program" and/or
"Consulting Agreement", the terms of which shall be mutually agreed to by
Officer and the Company prior to March 30, 2002.
4.4.5 ENTERTAINMENT. The Company shall reimburse Officer for the cost of
entertainment provided by Officer to the Company's customers, vendors, employees
and strategic partners, provided the aggregate of such annual cost does not
exceed $200,000 per annum during the first year of the Term. Commencing January
1, 2002 and continuing annually thereafter, the cost of entertainment may, at
Officer's sole discretion, be increased 5% per annum.
4.4.6 REIMBURSEMENT. Officer shall be entitled to reimbursement from the
Company for the reasonable costs and expenses incurred in connection with the
performance of the duties and obligations provided for in this Amended
Agreement. The Company shall provide Officer reimbursement for the cost of an
apartment in the Borough of Manhattan, provided the aggregate of such cost does
not exceed $2,000 per month during the first year of the Term. Commencing
January 1, 2002, and continuing annually thereafter, such monthly cost of an
apartment in the Borough of Manhattan may, at Officer's sole discretion,
increase 5% per annum. Additionally, Officer shall be entitled to reimbursement
for reasonable attorneys' fees incurred in connection with the receipt of advice
from attorneys, accountants or financial planners regarding the exercise of
stock options to purchase common stock of the Company and
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other compensation related issues, not to exceed $12,000 per calendar year.
Reimbursement shall be paid upon prompt presentation of expense statements or
vouchers and such other supporting information as the Company may from time to
time require.
5. INDEMNIFICATION.
The Company and Officer are parties to an Indemnification Agreement,
pursuant to which, inter alia, the Company has agreed, on the terms and
conditions therein set forth, to indemnify Officer against certain claims
arising by reason of the fact that he is or was an officer or director of the
Company.
6. TRADE SECRETS.
Officer will not at any time during the Term and for the three-year
period thereafter, in any fashion, form, or manner, unless specifically
consented to in writing by the Company, either directly or indirectly use or
divulge, disclose or communicate to any person, firm or corporation, any
confidential information of any kind, nature or description concerning any
matters affecting or relating to the business of the Company, except in the
ordinary course of the Company's business. All equipment, notebooks, documents,
memoranda, report, files, samples, books, correspondence, lists, other written
and graphic records, and the like, affecting or relating to the business of the
Company, which Officer shall prepare, use, construct, observe, possess or
control, shall be and remain the Company's sole property. Officer's obligation
under the preceding sentence shall continue in effect after the end of Officer's
employment with the Company and the obligations shall be binding on Officer's
assigns, heirs, executors, administrators, and other legal representatives.
7. RETURN OF CORPORATE PROPERTY AND TRADE SECRETS.
Upon termination of this Amended Agreement for any reason, Officer, or
his estate in the event of his death, shall turn over to the Company all
correspondence, property, writings or documents then in his possession or
custody belonging to or relating to the affairs of the Company or any of its
subsidiaries or affiliates or comprising or relating to the Trade Secrets.
8. TERMINATION OF EMPLOYMENT.
8.1 TERMINATION IN CASE OF DEATH.
8.1.1 Officer's employment hereunder shall terminate immediately upon
the death of Officer.
8.1.2 Upon termination of Officer's employment pursuant to this Section
8.1, the Company shall pay to Officer's estate, on the Termination Date, a lump
sum payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) the
amount Officer would have earned as Base Salary during the remaining scheduled
Term of the Amended Agreement (computed without regard to the termination of the
Amended Agreement pursuant to this Section 8-1). In addition to the foregoing,
and
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notwithstanding the provisions of any other agreement to the contrary, (x) all
options to purchase the Common Stock of the Company which have been granted to
Officer and which would have vested during the 24 months following the
Termination Date shall become immediately exercisable on the Termination Date
and, notwithstanding any other agreement to the contrary, shall remain
exercisable for the full term of each such option, and (y) the Company shall
continue to provide for the benefit of Officer's family the medical benefits
referred to in Section 4.4.4 hereof for the remaining scheduled Term of the
Amended Agreement (computed without regard to the termination of the Amended
Agreement pursuant to this Section 8.1).
8.2 TERMINATION IN CASE OF DISABILITY.
8.2.1 If Officer suffers a physical or mental disability which results
in Officer being unable to perform his duties hereunder for a 26 consecutive
week period, then the Board of Directors shall select a qualified physician to
examine Officer and review his physical and mental capacity. If such physician
determines in good faith that such physical or mental disability renders Officer
incapable of performing his duties hereunder for a period of at least 26
consecutive weeks following the date of such physician's written opinion, then
Officer's employment shall terminate effective 26 weeks following the date of
such physician's written opinion.
8.2.2 Upon termination of Officer's employment pursuant to this Section
8.2, the Company shall pay to Officer, on the Termination Date, a lump sum
payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) the
amount Officer would have earned as Base Salary during the remaining scheduled
Term of the Amended Agreement (computed without regard to the termination of the
Amended Agreement pursuant to this Section 8.2); provided, however, such amount
shall be reduced by the amount of any payments to be paid to Officer under any
long-term disability insurance policy maintained by the Company for the benefit
of Officer pursuant to Section 4.4.4. In addition to the foregoing, and
notwithstanding the provisions of any other agreement to the contrary, (x) all
options to purchase the Common Stock of the Company which have been granted to
Officer and which would have vested during the 24 months following the
Termination Date shall become immediately exercisable on the Termination Date
and, notwithstanding any other agreement to the contrary, shall remain
exercisable for the full term of each such option, and (y) the Company shall
continue to provide to Officer all other benefits referred to in Sections 4.4.2,
4.4.3 and 4.4.4 hereof for the remaining scheduled Term of the Amended Agreement
(computed without regard to the termination of the Amended Agreement pursuant to
this Section 8.2).
8.3 TERMINATION BY OFFICER FOR CAUSE.
8.3.1 The employment of Officer hereunder shall terminate immediately
upon written notice delivered by Officer to the Company upon the occurrence of
any of the following events:
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8.3.1.1 The willful breach of any of the material obligations of the
Company to Officer under this Amended Agreement following written notice
delivered to the Company and a reasonable cure period not to exceed 30 days;
8.3.1.2 The Company's chief executive offices are moved to a location
outside of Los Angeles County, California; or
8.3.1.3 Officer fails to be reelected to, or is removed from, the Board
of Directors of the Company.
8.3.2 Upon termination of Officer's employment pursuant to this Section
8.3, the Company shall pay to Officer, on the Termination Date, a lump sum
payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) the
amount Officer would have earned as Base Salary during the remaining scheduled
Term of the Amended Agreement (computed without regard to the termination of the
Amended Agreement pursuant to this Section 8.3), plus an amount equal to five
times (i) in the event no previous bonus has been paid or is payable pursuant to
this Amended Agreement, 20% of Officer's Base Salary, or (ii) in the event at
least one bonus has been paid or is payable to Officer, the greater of (a) the
last annual bonus paid or payable to Officer pursuant to this Amended Agreement;
and (b) the average annual bonus based on all annual bonuses paid or payable to
Officer pursuant to this Amended Agreement. In addition to the foregoing, and
notwithstanding the provisions of any other agreement to the contrary, (x) all
options to purchase the Common Stock of the Company which have been granted to
Officer shall become immediately exercisable on the Termination Date and,
notwithstanding any other agreement to the contrary, shall remain exercisable
for the full term of each such option, (y) the Company shall continue to provide
to Officer all other benefits that would otherwise be payable to Officer
pursuant to Sections 4.4.2, 4.4.3 and 4.4.4 hereof for the remaining scheduled
Term of the Amended Agreement (computed without regard to the termination of the
Amended Agreement pursuant to this Section 8.3), and (z) the Company shall
continue to provide to Officer all other benefits that would otherwise be
payable to Officer pursuant to Section 4.4.5 hereof for a period of two years
after such termination by Officer for cause (computed without regard to the
termination of the Amended Agreement pursuant to this Section 8.3).
8.4 TERMINATION BY OFFICER WITHOUT CAUSE.
8.4.1 This Amended Agreement shall terminate immediately upon delivery
to the Company of written notice of termination by Officer without cause.
8.4.2 Upon termination of this Amended Agreement pursuant to this
Section 8.4, the Company shall pay to Officer, on the Termination Date, a lump
sum payment of an amount equal to all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date.
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8.5 TERMINATION BY THE COMPANY WITHOUT CAUSE.
8.5.1 The employment of Officer shall terminate immediately upon
delivery to Officer of written notice of termination by the Company, which shall
be deemed to be "without cause" unless termination is expressly stated to be
pursuant to Sections 8.1 or 8.2.
8.5.2 Upon termination of this Officer's employment pursuant to this
Section 8.5, the Company shall pay to Officer, on the Termination Date, a lump
sum payment of an amount equal to (x) all accrued and unpaid salary and other
compensation payable to Officer by the Company and all accrued and unused
vacation and sick pay payable to Officer by the Company with respect to services
rendered by Officer to the Company through the Termination Date, and (y) the
amount Officer would have earned as Base Salary during the remaining scheduled
Term of the Amended Agreement (computed without regard to the termination of the
Amended Agreement pursuant to this Section 8.5), plus an amount equal to five
times (i) in the event no previous bonus has been paid or is payable pursuant to
this Amended Agreement, 20% of Officer's Base Salary, or (ii) in the event at
least one bonus has been paid or is payable to Officer, the greater of (a) the
last annual bonus paid or payable to Officer pursuant to this Amended Agreement;
and (b) the average annual bonus based on all annual bonuses paid or payable to
Officer pursuant to this Amended Agreement. In addition to the foregoing, and
notwithstanding the provisions of any other agreement to the contrary, (x) all
options to purchase the Common Stock of the Company which have been granted to
Officer shall become immediately exercisable on the Termination Date and,
notwithstanding any other agreement to the contrary, shall remain exercisable
for the full term of each such option, (y) the Company shall continue to provide
to Officer all other benefits that would otherwise be payable to Officer
pursuant to Sections 4.4.2, 4.4.3 and 4.4.4 hereof for the remaining scheduled
Term of the Amended Agreement (computed without regard to the termination of the
Amended Agreement pursuant to this Section 8.5), and (z) the Company shall
continue to provide to Officer all other benefits that would otherwise be
payable to Officer pursuant to Section 4.4.5 hereof for a period of two years
after such termination by the Company without cause (computed without regard to
the termination of the Amended Agreement pursuant to this Section 8.5).
8.6 TERMINATION BY THE COMPANY FOR CAUSE.
8.6.1 The employment of Officer hereunder shall terminate immediately
upon written notice delivered by the Company to the Officer of termination for
"cause" by reason of Officer's conviction (including any plea of guilty or no
contest) of (x) any felony involving the embezzlement, theft or misappropriation
of monies or other property, of the Company or otherwise, or (y) any crime of
moral turpitude.
8.6.2 Upon termination of this Amended Agreement pursuant to this
Section 8.6, the Company shall pay to Officer, on the Termination Date, all
accrued and unpaid salary and other compensation, payable to Officer by the
company and all accrued and unused vacation and sick pay payable to Officer by
the Company with respect to services rendered by the Officer to the Company
through the Termination Date in a lump sum payment. The Company shall have no
further obligation to the Officer pursuant to this Amended Agreement.
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8.7 TERMINATION DATE. For purposes of this Section 8, the term,
"Termination Date" shall mean that date on which Officer's employment is
terminated pursuant to this Section 8.
9. SEVERANCE PAYMENTS UPON CHANGE IN CONTROL.
9.1 SEVERANCE PAYMENT. Upon the occurrence of a Change in Control (as
defined in Section 9.5 below) of the Company, the employment of Officer
hereunder shall terminate and the Company, in lieu of any payment otherwise due
under Section 8 hereof, shall pay to Officer in cash, on the fifth day following
the date on which the Change of Control occurs (which for the purposes of this
Section 9 shall be the Termination Date), the following:
9.1.1 All accrued and unpaid salary and other compensation payable to
Officer by the Company for services rendered by Officer to the Company through
the Termination Date;
9.1.2 All accrued and unused vacation and sick pay payable to Officer by
the Company with respect to services rendered by Officer to the Company through
the Termination Date; and
9.1.3 Severance pay in an amount equal to (x) the Base Salary Officer
would have earned during the remaining scheduled Term of the Amended Agreement
(computed without regard to the Change in Control described in this Section 9),
plus an amount equal to five times (y) (i) in the event no previous annual bonus
has been paid or is payable pursuant to this Amended Agreement, 20% of Officer's
Base Salary, or (ii) in the event at least one annual bonus has been paid or is
payable to Officer, the greater of (a) the last annual bonus paid or payable to
Officer pursuant to this Amended Agreement, or (b) the average annual bonus
based on all annual bonuses paid or payable to Officer pursuant to this Amended
Agreement.
9.2 CONTINUATION OF BENEFITS. The Company shall continue for the
remaining scheduled Term of the Amended Agreement (computed without regard to
the Change in Control described in this Section 9), to provide Officer with all
benefits that would have been payable to him pursuant to Sections 4.4.2, 4.4.3
and 4.4.4 hereof if Officer had been employed by the Company during such period.
9.3 VESTING OF OPTIONS. In addition to the foregoing, and
notwithstanding the provisions of any other agreement to the contrary, upon the
occurrence of a Change in Control, all options to purchase Common Stock of the
Company which have been granted to Officer by the Company shall become
immediately exercisable on the Termination Date and, notwithstanding any other
agreement to the contrary, shall remain exercisable for the full term of each
such option.
9.4 PROVISION OF SERVICES FOLLOWING CHANGE IN CONTROL. At the request of
the Company, Officer shall continue to serve hereunder for a period of up to 180
days following the Termination Date. If the Company requests Officer to perform
such services, Officer shall be compensated from and after the Termination Date
for the period that Officer actually remains employed by the Company at his then
current Base Salary. Any such amounts payable to Officer shall be in addition to
and not in lieu of the amounts payable to Officer under Section 9.1 above.
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Upon the later to occur of an occurrence of a Change of Control or the
termination of any period during which Officer continues to provide services as
aforesaid, Officer's employment hereunder shall terminate.
9.5 CHANGE IN CONTROL. For purposes of this Section 9, a "Change in
Control" of the Company shall be deemed to have occurred if (a) there shall be
consummated (x) any consolidation or merger of the Company into or with another
"person" (as such term is used in Sections 13(d)(3) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) pursuant to
which shares of the Company's common stock would be converted into cash,
securities or other property, other than any consolidation or merger of the
Company in which the persons who were stockholders of the Company immediately
prior to the consummation of such consolidation or merger are the beneficial
owners (within the meaning of Rule 13d-3 under the Exchange Act), immediately
following the consummation of such consolidation or merger, of 62.5% or more of
the combined voting power of the then outstanding voting securities of the
person surviving or resulting from such consolidation or merger, or (y) any
sale, lease or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company, or (b)
the stockholders of the Company approve any plan or proposal for the liquidation
or dissolution of the Company, or (c) any person who is not, immediately
following the occurrence of a Public Offering Event (as defined in the
Stockholders Agreement, dated as of September 20, 2000, by and among the
Company, Officer and the other signatories thereto, as amended), the beneficial
owner of 10% or more of the Company's outstanding common stock (or any person
who is not an affiliate or related party of such a beneficial owner of 10% or
more of the Company's outstanding common stock) shall become the beneficial
owner of 25% or more of the Company's outstanding common stock, or (d) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the entire board of directors of the Company cease for any
reason to constitute a majority thereof unless the election, or the nomination
for election by the Company's stockholders, of each new director was approved by
a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
The parties believe that the payments pursuant to Sections 8 and 9
hereof do not constitute "Excess Parachute Payments" under Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"). Notwithstanding such
belief, if any benefit under these sections constitutes an "Excess Parachute
Payment" the Company shall pay to Officer an additional amount ("Tax Payment")
such that (x) the excess of all Excess Parachute Payments (including payments
under this sentence) over the sum of excise tax thereon under Section 4999 of
the Code and income tax thereon under Subtitle A of the Code and under
applicable state law is equal to (y) the excess of all Excess Parachute Payments
(excluding payments under this sentence) over income tax thereon under Subtitle
A of the Code and under applicable state law. Such Tax Payment shall be paid to
Officer concurrently with the severance payment referred to in Section 9.1
above.
10. NO MITIGATION.
The payments required to be paid to Officer by Company pursuant to
sections 8 and 9 shall not be reduced by or mitigated by amounts which Officer
earns or is capable of earning during any period following his Termination Date.
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11. INJUNCTIVE RELIEF.
Officer hereby recognizes, acknowledges and agrees that in the event of
any breach by Officer of any of his covenants, agreements, duties or obligations
hereunder, the Company would suffer great and irreparable harm, injury and
damage, the Company would encounter extreme difficulty in attempting to prove
the actual amount of damages suffered by the Company as a result of such breach,
and the Company would not be reasonably or adequately compensated in damages in
any action at law. Officer therefore agrees that, in addition to any other
remedy the Company may have at law, in equity, by statute or otherwise, in the
event of any breach by Officer of any of the covenants, agreements, duties or
obligations hereunder, the Company or its subsidiaries shall be entitled to seek
and receive temporary, preliminary and permanent injunctive and other equitable
relief from any court of competent jurisdiction to enforce any of the rights of
the Company or its subsidiaries or any of the covenants, agreements, duties or
obligations of Officer hereunder, or otherwise to prevent the violation of any
of the terms or provisions hereof, all without the necessity of proving the
amount of any actual damage to the company or its subsidiaries thereof resulting
therefrom; provided, however, that nothing contained in this Section 11 shall
be deemed or construed in any manner whatsoever as a waiver by the Company or
its subsidiaries of any of the rights which any of them may have against Officer
at law, in equity, by statute or otherwise arising out of, in connection with or
resulting from the breach by Officer of any of his covenants, agreements, duties
or obligations hereunder.
12. MISCELLANEOUS.
12.1 ENTIRE AGREEMENT. This Amended Agreement contains the entire
understanding of the parties hereto relating to the subject matter hereof and
cannot be changed or terminated except in writing signed by both Officer and the
Company.
12.2 LIMITED LIABILITIES. All liabilities incurred by Officer in his
capacity as an officer hereunder shall be incurred for the account of the
Company, and Officer shall not be personally liable therefor. Officer shall not
be liable to the Company, or any of its respective subsidiaries, affiliates,
employees, officers, directors, agents, representatives, successors, assigns,
stockholders, and their respective subsidiaries and affiliates, the Company
shall, and hereby agrees to, indemnify, defend and hold Officer harmless from
and against any and all damages and/or loss or liability (including, without
limitation, all costs of defense thereof), for any acts or omissions in the
performance of service under and within the scope of this Amended Agreement on
the part of Officer.
12.3 NOTICES. All notices, requests and other communications
(collectively, "Notices") given pursuant to this Amended Agreement shall be in
writing, and shall be delivered by facsimile transmission with a copy delivered
by personal service or by United States first class, registered or certified
mail (return receipt requested), postage prepaid, addressed to the party at the
address set forth below:
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If to the Company: VCA Antech, Inc.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Board of Directors
Facsimile No.: (000) 000-0000
If to Officer: Xxxxxx X. Xxxxx
Any Notice shall be deemed duly given when received by the addressee
thereof, provided that any Notice sent by registered or certified mail shall be
deemed to have been duly given three days from date of deposit in the United
States mails, unless sooner received. Either party may from time to time change
its address for further Notices hereunder by giving notice to the other party in
the manner prescribed in this Section 12.3.
12.4 GOVERNING LAW. This Amended Agreement has been made and entered
into in the state of California and shall be construed in accordance with the
laws of the State of California without regard to the conflict of law
principles thereof.
12.5 COUNTERPARTS. This Amended Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
12.6 SEVERABLE PROVISIONS. The provisions of this Amended Agreement are
severable, and if any one or more provisions are determined to be judicially
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
12.7 SUCCESSORS AND ASSIGNS. This Amended Agreement and all obligations
and benefits of Officer and the Company hereunder shall bind and inure to the
benefit of Officer and the Company, their respective affiliates, and their
respective successors and assigns.
12.8 AMENDMENTS AND WAIVERS. No amendment or waiver of any term or
provision of this Amended Agreement shall be effective unless made in writing.
Any written amendment or waiver shall be effective only in the instance given
and then only with respect to the specific term or provision (or portion
thereof) of this Amended Agreement to which it expressly relates, and shall not
be deemed or construed to constitute a waiver of any other term or provision (or
portion thereof) waived in any other instance.
12.9 TITLE AND HEADINGS. The titles and headings contained in this
Amended Agreement are included for convenience only and form no part of the
agreement between the parties.
12.10 SURVIVAL. Notwithstanding anything to the contrary contained
herein, the provisions of sections 6, 7, 8, 9, 10 and 11 shall survive the
termination of this Amended Agreement.
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IN WITNESS WHEREOF, this Amended Agreement has been executed as of the
date first set forth above.
VCA ANTECH, INC
"THE COMPANY"
/S/
-----------------------------------------
ACCEPTED AND AGREED TO:
/S/
-----------------------------------
Xxxxxx X. Xxxxx
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