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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and
entered into as of June 6, 2000 by and between PET QUARTERS, INC., an Arkansas
corporation (the "COMPANY"), and Xxxxx Xxxxxxx, an Arkansas resident
("EXECUTIVE").
WHEREAS, Executive and the Company deem it to be in their
respective best interests to enter into an agreement providing for the
Company's employment of Executive pursuant to the terms herein stated.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. START DATE. This Agreement shall be effective as of the date hereof,
and the "TERM OF EMPLOYMENT" (as defined herein) shall commence as of
June 1, 2000 (the "START DATE").
2. POSITION AND DUTIES. The Company hereby employs Executive in the
capacity as Chief Financial Officer commencing as of the Start Date
for the Term of Employment. Executive shall devote his best efforts to
the performance of the services customarily incident to such offices
and positions and to such other services of a senior executive nature
as may be reasonably requested by the Chief Executive Officer of the
Company (collectively, "COMPANY MATTERS"). Executive, in his capacity
as an employee and officer of the Company, shall be responsible to and
obey the reasonable and lawful directives of the Chief Executive
Officer or the Board of Directors. Executive shall report directly to
the Board of Directors of Company only, and Executive shall have such
authority and duties as are customary in such position. During the
Term of Employment, Executive's office shall be located within the
City of Lonoke, Arkansas or the City of Little Rock, Arkansas, and
Executive shall not be required to locate outside of either of these
two cities without Executive's written consent.
3. COMPENSATION.
(a) BASE SALARY. The Company shall pay to Executive for the
duration of the Term of Employment a minimum salary at the
rate of ninety two thousand dollars ($92,000.00) per calendar
year and agrees that such salary shall be reviewed quarterly
by the Board and, if appropriate, will be increased based on
the Company's ability to meet its budgetary and strategic
goals and objectives (the "Base Salary"). Such salary shall
be payable at least monthly in accordance with the Company's
normal payroll procedures. At no time during the Term of
Employment shall Executive's Base Salary be decreased from
the amount of the Base Salary then in effect without the
consent of Executive.
(b) PERFORMANCE BONUS. In addition to the compensation otherwise
payable to Executive pursuant to this Agreement, Executive be
eligible to receive additional
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annual bonuses to the extent, if any, awarded by the Board in
the sole discretion of the Board (the "DISCRETIONARY BONUS").
(c) STOCK OPTIONS. In addition to the compensation otherwise
payable to Executive pursuant to this Agreement, Executive
shall receive, under a separate agreement, stock options
according to terms and conditions comparable to
similarly-situated officers of the Company.
4. BENEFITS. During the Term of Employment:
(a) Executive shall be eligible to participate in any life,
health and long-term disability insurance programs, pension
and retirement programs, stock option and other incentive
compensation programs, and other fringe benefit programs made
available to senior executive employees of the Company from
time to time, and Executive shall be entitled to receive such
other fringe benefits as may be granted to him from time to
time by the Company's Board.
(b) Executive shall be allowed vacations and leaves of absence
with pay in accordance with Company policy.
(c) The Company shall reimburse Executive for reasonable business
expenses incurred in performing Executive's duties and
promoting the business of the Company, including, but not
limited to, reasonable entertainment expenses, travel and
lodging expenses, long distance and cellular telephone
expenses, and approved professional memberships, following
presentation of documentation in accordance with the
Company's business expense reimbursement policies.
(d) Executive shall be added as an additional named insured under
all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in
his or her capacity as an officer or director. Company shall
indemnify Executive in his capacity as an officer or director
and hold him harmless from any cost, expense or liability
arising out of or relating to any acts or decisions made by
him on behalf of or in the course of performing services for
the Company (to the maximum extent provided by the Bylaws of
the Company and applicable law).
5. TERM; TERMINATION OF EMPLOYMENT. As used herein, the phrase "TERM OF
EMPLOYMENT" shall mean the period commencing on the Start Date and
ending approximately two (2) years from the Start Date on May 31,
2000; provided, however, that, unless either the Company or Executive
provides two (2) months notice to the contrary prior to the end of the
Term of Employment, the Term of Employment shall automatically be
extended for one (1) year periods. Notwithstanding the foregoing, the
Term of Employment shall expire on the first to occur of the following
(the "TERMINATION DATE"):
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(a) TERMINATION BY THE COMPANY WITHOUT CAUSE. Notwithstanding
anything to the contrary in this Agreement, whether express
or implied, the Company may, at any time, terminate
Executive's employment for any reason other than Cause (as
defined below), Disability (as defined below), or Death by
giving Executive at least thirty (30) days prior written
notice of the effective date of termination. In the event
Executive's employment hereunder is terminated by the Company
other than for Cause, Disability or Death, Executive shall be
entitled to receive from Company all amounts specified below
as follows:
i. Base Salary and Bonuses. Company shall pay or cause
to be paid within 15 days of the termination date in
a lump sum, an amount equal to Executive's Base
Salary and any accrued Bonuses as he would have
received such amounts during the period commencing
on the effective date of such termination and ending
at the latter of the Term of Employment or twelve
(12) months after the Termination Date (the "SALARY
CONTINUATION PERIOD").
ii. Benefits. During the first six months of the Salary
Continuation Period, Executive and his spouse,
dependents and beneficiaries shall be entitled to
continue to be covered by all group medical, health
and accident insurance or other such health care
arrangements in which Executive was a participant as
of the effective date of such termination pursuant
to this Subsection, at the same coverage level and
on the same terms and conditions which applied
immediately prior to the effective date of
Executive's termination of employment pursuant to
this Subsection, until Executive obtains alternative
comparable coverage under another group plan, which
coverage does not contain any pre-existing condition
exclusions or limitations. At the termination of the
benefits coverage under the preceding sentence,
Executive and his spouse, dependents and
beneficiaries shall be entitled to continuation
coverage pursuant to Section 4980B of the Internal
Revenue Code of 1986, as amended, Sections 601-608
of the Employee Retirement Income Security Act of
1974, as amended, and under any other applicable
law, to the extent required by such laws, as if
Executive had terminated employment with the Company
on the date such benefits coverage terminates.
iii. Stocks/Stock Options. Any unvested stock options,
stock appreciation rights, warrants, bonus units, or
comparable rights (collectively, "options") granted
or to be granted to Executive, and any shares or
other units (collectively "shares") granted or to be
granted to Executive, pursuant to any plan involving
or based upon equity in the Company, shall
automatically and fully vest in Executive (and any
and all conditions applicable thereto shall be
deemed satisfied). In addition, any options granted
or to be granted to Executive, vested or unvested,
and all shares of common stock of the Company owned
by Executive shall automatically double. Such
options shall be fully vested in accordance with
this
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subsection except the exercise price for such
options granted pursuant to this subsection shall be
the closing bid price for shares of common stock of
the Company on the Termination Date, and such shares
of common stock granted pursuant to this subsection
shall be deemed to be validly issued, fully paid,
and nonassessable.
(b) TERMINATION FOR CAUSE. The Company shall have the right to
terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of
termination (which effective date may, except as otherwise
provided below, be the date of such notice). If the Company
terminates Executive's employment for Cause, Executive shall
be paid his unpaid Base Salary accrued through the date of
termination, and the Company shall have no further obligation
hereunder from and after the effective date of termination
under this Subsection and shall have all other rights and
remedies available under this or any other agreement and at
law or in equity.
For purposes of this Agreement, "CAUSE" shall mean:
(i) theft, forgery, fraud, misappropriation,
embezzlement, moral turpitude or other act of
material misconduct against the Company or any of
its affiliates;
(ii) willful and knowing violation of any rules or
regulations of any governmental or regulatory body,
which is or is reasonably expected to be materially
injurious to the financial condition of the Company;
or
(iii) conviction of, or plea of guilty or nolo contendere
to, a felony or any crime of theft, forgery, fraud,
misappropriation, embezzlement, moral turpitude or
other act of material misconduct;
(iv) a material violation of any fiduciary duty owed to
the Company;
provided, however, that for any such event, activity or
omission in clause (iv) of this subsection, Executive shall
be given (A) prior written notification of the Company's
intended actions and a description of the alleged events,
activities or omissions giving rise thereto, and (B) with
respect to those events, activities or omissions for which a
cure is reasonably possible, a reasonable opportunity (of not
less than thirty (30) days) to cure such breach.
(c) TERMINATION ON ACCOUNT OF DEATH. In the event of Executive's
death while in the employ of the Company, his employment
hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the
date of termination. In addition, any other benefits payable
on behalf of Executive shall be determined under the
Company's insurance and other compensation and benefit plans
and programs then in effect in accordance with the terms of
such programs.
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(d) TERMINATION ON ACCOUNT OF DISABILITY. To the extent not
prohibited by The Americans With Disabilities Act of 1990,
if, as a result of Executive's incapacity due to physical or
mental illness (as determined in good faith by a physician
acceptable to the Company and Executive), Executive is unable
to substantially render to the Company the services required
under this Agreement for more than ninety (90) days out of
any consecutive one hundred and eighty (180) day period or if
a physician acceptable to the Company advises the Company
that it is likely that Executive will be unable to return to
the performance of his duties for more than ninety (90) days
out of any consecutive one hundred and eighty (180) day
period his employment may be terminated for "DISABILITY."
During any period that Executive fails to perform his duties
with the Company as a result of incapacity due to physical or
mental illness, he shall continue to receive his Base Salary
and other benefits provided hereunder, together with all
compensation payable to him under the Company's disability
plan or program or other similar plan during such period,
until Executive's employment hereunder is terminated pursuant
to this subsection. Thereafter, Executive's benefits shall be
determined under the Company's retirement, insurance, and
other compensation and benefit plans and programs then in
effect, in accordance with the terms of such programs.
(e) TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive shall
have the right to terminate Executive's employment, without
further obligation or liability to Company, except that any
termination of Executive's employment under this Section 5(f)
shall have the same effect as a termination without cause by
Company under Section 5(a) above, upon the occurrence of any
one or more of the following events, which events shall be
deemed termination by Executive for "Good Reason":
i. CHANGE IN REPORTING. If Executive no longer reports
directly to the Board of Directors of Company.
ii. REDUCTION IN DUTIES OR TITLE. If Executive's duties
hereunder are diminished in any material respect or
Executive's title as Chief Executive Officer is
diminished without his prior written consent;
iii. OTHER MATERIAL BREACH. If Company willfully commits
a material breach of this Agreement with the actual
knowledge that its conduct constitutes a breach of
this Agreement;
iv. CHANGE IN LOCATION. If Executive's office is
re-located outside of the cities listed in Section 2
without his prior written consent;
v. EFFECTIVENESS OF NOTICE. Upon the failure to cure
any of the events/breaches set out in Section
5(b)(i) through 5(b)(iv) within thirty (30) days
after Company's receipt of written notice from
Executive specifying the applicable events/breaches
and expressly referring to this Section 5(f) (the
"Initial Notice"), Executive shall have the right to
elect to terminate
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his employment for Good Reason by giving a second
written notice (the "Second Notice") to Company to
such effect and referring to this Section 5(f);
provided, however, that with respect to any such
events/breaches that are capable of prospective
cure, if Company commences to effect such a cure
within the foregoing thirty (30) day period, Company
shall be permitted additional time to cure and not
be deemed in breach so long as it diligently
continues to seek to effect a cure. Executive shall
be deemed to have terminated his employment for Good
Reason under this Section 5(f) effective ten (10)
days following Second Notice.
6. CONFIDENTIAL INFORMATION, NON-SOLICITATION AND NON-COMPETITION.
(a) During the Term of Employment and thereafter, Executive shall
not, except as may be required to perform his duties
hereunder or as required by applicable law, disclose to
others or use, whether directly or indirectly, any
Confidential Information regarding the Company. "CONFIDENTIAL
INFORMATION" shall mean information about the Company, its
subsidiaries and affiliates, and their respective clients and
customers that is not available to the general public and
that was learned by Executive in the course of his employment
by the Company, including, but not limited to, any
proprietary knowledge, trade secrets, data, formulae,
information, and client and customer lists and all papers,
resumes, records (including computer records) and the
documents containing such Confidential Information. Executive
acknowledges that such Confidential Information is
specialized, unique in nature and of great value to the
Company, and that such information gives the Company a
competitive advantage. Upon the termination of his employment
for any reason whatsoever, Executive shall promptly deliver
to the Company all documents, computer tapes and disks (and
all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving payments under
this Agreement, Executive shall not, directly or indirectly
in any manner or capacity (e.g., as an advisor, principal,
agent, partner, officer, director, shareholder, employee,
member of any association or otherwise) engage in, work for,
consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the
business of the Company. Executive further agrees that during
such period he will not assist or encourage any other person
in carrying out any activity that would be prohibited by the
foregoing provisions of this Section if such activity were
carried out by Executive and, in particular, Executive agrees
that he will not induce any employee of the Company to carry
out any such activity; provided, however, that the
"beneficial ownership" by Executive, either individually or
as a member of a "group," as such terms are used in Rule 13d
of the General Rules and Regulations under the Exchange Act,
of not more than one percent (1%) of the voting stock of any
publicly held corporation shall not be a violation of this
Agreement. It is further expressly agreed that the Company
will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of
the Company in violation of this Agreement and that the
Company would by reason of
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such competition be entitled to injunctive relief in a court
of appropriate jurisdiction, and Executive further consents
and stipulates to the entry of such injunctive relief in such
a court prohibiting Executive from competing with the Company
or any subsidiary or affiliate of the Company in violation of
this Agreement.
(c) During the period that Executive is receiving payments under
this Agreement and for one (1) year after such payments
terminate, Executive shall not, directly or indirectly,
influence or attempt to influence suppliers, customers or
affiliates of the Company to divert their business to any
competitor of the Company.
(d) Executive recognizes that he will possess confidential
information about other employees of the Company relating to
their education, experience, skills, abilities, compensation
and benefits, and interpersonal relationships with customers
of the Company. Executive recognizes that the information he
will possess about these other employees is not generally
known, is of substantial value to the Company in developing
its business and in securing and retaining customers, and
will be acquired by him because of his business position with
the Company. Executive agrees that, during the period that
Executive is receiving payments under this Agreement and for
one (1) year after such payments terminate, Executive will
not, directly or indirectly, solicit or recruit any employee
of the Company for the purpose of being employed by Executive
or by any competitor of the Company on whose behalf he is
acting as an agent, representative or employee and that he
will not convey any such confidential information or trade
secrets about other employees of the Company to any other
person.
(e) If it is determined by a court of competent jurisdiction in
any state that any restriction in this Section is excessive
in duration or scope or is unreasonable or unenforceable
under the laws of that state, it is the intention of the
parties that such restriction may be modified or amended by
the court to render it enforceable to the maximum extent
permitted by the law of that state.
7. CONSOLIDATION. MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER.
(a) In the event that, following the date hereof, directly or
indirectly, (x) the Company shall consolidate with, or merge
with and into, any other entity (other than a subsidiary of
the Company), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger, (y)
any person (other than a subsidiary of the Company) shall
consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of
such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding
shares of common stock of the Company shall be changed into
or exchanged for stock or other securities of any other
entity or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its
subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or
earning power aggregating
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more than 50% of the assets, operating income, cash flow or
earning power of the Company and its subsidiaries (taken as a
whole) to any person(s) or entity(ies) (other than the
Company or any subsidiary of the Company), then, and in each
such case and except as contemplated by subsection (d),
Executive shall have been deemed terminated without cause for
purposes of Section 5(a)(iii), regardless of whether
Executive remains employed by Company or its survivor
pursuant to this Agreement, and any termination of Executive
within twelve (12) months of such consolidation or merger
shall be deemed to be without cause and the remaining
provisions of Section 5(a) shall be applicable.
(b) The Company shall not consummate any such consolidation,
merger, sale or transfer unless the surviving entity shall
have a sufficient number of authorized shares of its common
stock that have not been issued or reserved for issuance to
permit the exercise in full of the rights of Executive in
accordance with Section 5(a)(iii) and unless prior thereto
the Company and such surviving entity shall have executed and
delivered to the Executive an agreement acknowledging the
Company's or the surviving entity's obligation to, as soon as
practicable after the date of any Section 7 event, prepare
and file a registration statement under the Securities Act of
1933 (the "Act"), with respect to all shares of common stock
owned by Executive or to be acquired by Executive pursuant to
any option, and will use its best efforts to cause such
registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with
a prospectus at all times meeting the requirements of the
Act) until Executive has sold all of his shares of common
stock in the Company or the surviving entity or Executive can
sell of his shares of common stock in the Company or the
surviving entity without such current registration statement.
(c) The provisions of this Section 7 shall similarly apply to
successive mergers or consolidations or sales or other
transfers.
8. DESIGNATED BENEFICIARY. In the event of the death of Executive while
in the employ of the Company, or at any time thereafter during which
amounts remain payable to Executive under SECTION 5, such payments
(other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive
payments under this Agreement following Executive's death by filing a
written beneficiary designation with the Company during Executive's
lifetime. Such beneficiary designation shall be in such form as may be
prescribed by the Company and may be amended from time to time or may
be revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such
as a trustee or a trust or the legal representative of an estate.
Unless otherwise provided by the beneficiary designation filed by
Executive, if all of the persons so designated die before Executive on
the occurrence of a contingency not contemplated in such beneficiary
designation, then the amounts payable under this Agreement shall be
paid to Executive's estate.
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9. TAXES. All payments to be made to Executive under this Agreement will
be subject to any applicable withholding of federal, state and local
income and employment taxes.
10. RESOLUTION OF DISPUTES. If any dispute shall arise under or related to
this Agreement or the transactions contemplated hereby, other than
pursuant to and under Section 6, such dispute shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association (the "AAA"). Such dispute shall be settled by arbitration
in the City of Little Rock, Arkansas by three (3) arbitrators, one of
whom shall be appointed by Executive, one by the Company, and the
third by the first two arbitrators. If either party fails to appoint
an arbitrator within ten (10) days of a request in writing by the
other party to do so or if the first two arbitrators cannot agree on
the appointment of a third arbitrator within ten (10) days, then such
arbitrator shall be appointed in accordance with the rules of the AAA.
Except as to the selection of arbitrators which shall be as set forth
above, the arbitration shall be conducted promptly and expeditiously
in accordance with the rules of the AAA so as to enable the
arbitrators to render an award within sixty (60) days of the
commencement of the arbitration proceedings. The decision of the
arbitrators shall be binding upon the parties, and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The decision of the arbitrators shall include
within the arbitration award a recovery by the prevailing party or
parties of its or their expenses of arbitration, including the fees
and expenses of the arbitrators, other costs associated with the
arbitration proceeding and the reasonable attorneys' fees and expenses
of the prevailing party or parties incurred in connection with the
arbitration.
11. ATTORNEYS' FEES. Except as otherwise provided herein, should either
party hereto or their successors retain counsel for the purpose of
enforcing, or preventing the breach of, any provision hereof,
including, but not limited to, by instituting any action or proceeding
in arbitration or a court to enforce any provision hereof or to enjoin
a breach of any provision of this Agreement, or for a declaration of
such party's rights or obligations under the Agreement, or for any
other remedy, whether in arbitration or in a court of law, then the
successful party shall be entitled to be reimbursed by the other party
for all costs and expenses incurred thereby, including, but not
limited to, reasonable fees and expenses of attorneys and expert
witnesses, including costs of appeal. If such successful party shall
recover judgment in any such action or proceeding, such costs,
expenses and fees may be included in and as part of such judgment. The
successful party shall be the party who is entitled to recover the
costs of suit, whether or not the suit proceeds to final judgment. If
no costs are awarded, the successful party shall be determined by the
arbitrator or court, as the case may be.
12. RELEASE. In exchange for the promises and the payments set forth in
Section 5(a) above, Executive covenants and agrees to release, acquit,
and forever discharge the Company of and from any and all claims,
injuries, demands and causes of action, including, but not limited to:
breach of contract, wages, severance pay, vacation benefits, bonuses,
defamation, claims arising under the Arkansas Civil Rights Act of
1993, Title VII of the Civil Rights Act of 1964, as amended, Section
1981 of the Civil Rights Act of 1866, the Americans with Disabilities
Act, the Family Medical Leave Act and the Age Discrimination
Employment Act of 1967, as amended, which
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he may now have and which he may ever have as a result of, arising out
of, or by reason of: his employment by the Company; the termination of
his employment; any of the Company's employment practices, acts or
omissions; and any acts or omissions of the Company. It is Executive's
express desire to release and waive each and every claim for injuries,
damages and consequences, known or unknown, developed or which might
develop in the future resulting from any practices, acts or omissions
of the Company which occurred prior to the effective date of any
termination of this Agreement pursuant to and in accordance with
Section 5(a) hereof.
13. REVIEW PERIOD. Executive understands and agrees that he:
(a) Has a full 21 days within which to consider this Agreement
before executing it;
(b) Has carefully read and fully understands all of the
provisions of this Agreement;
(c) Is, through this Agreement, releasing the Company from any
and all claims he may have against them, including any and
all claims under state or federal securities laws;
(d) Knowingly and voluntarily agrees to all the terms set forth
in this Agreement;
(e) Knowingly and voluntarily intends to be legally bound by this
Agreement;
(f) Was advised and hereby is advised in writing to consider the
terms of this Agreement and consult with an attorney of his
choice prior to executing this Agreement;
(g) Has a full seven days following the execution of this
Agreement to revoke this Agreement and has been and hereby is
advised in writing that this Agreement shall not become
effective or enforceable until the revocation period has
expired; and
(h) Understands that claims or rights under the Age
Discrimination in Employment Act that may arise after the
date this Agreement is executed are not waived.
13. MISCELLANEOUS. This Agreement shall also be subject to the following
miscellaneous considerations:
(a) REPRESENTATIONS AND WARRANTIES.
(i) Executive represents and warrants to the Company
that he has the authorization, power and right to
deliver, execute and fully perform his obligations
under this Agreement in accordance with its terms.
Executive further represents and warrants that this
Agreement does not require any authorization,
consent, approval, exemption or other action by any
other party and does not (A) conflict with or result
in the breach of the terms, conditions or provisions
of, (B) constitute a default under, or (C) result in
a
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violation of any agreement, instrument, order,
judgment or decree to which Executive is subject.
Executive will, to the fullest extent permitted by
applicable law, as from time to time in effect,
indemnify the Company and hold the Company harmless
for any breach of the representations set forth in
this subparagraph (i).
(ii) The Company represents and warrants to Executive
that it has the authorization, power and right to
deliver, execute and fully perform its obligations
under this Agreement in accordance with its terms.
The Company further represents and warrants that
this Agreement does not require any authorization,
consent, approval, exemption or other action by any
other party and does not (A) conflict with or result
in the breach of the terms, conditions or provisions
of, (B) constitute a default under, or (C) result in
a violation of any agreement, instrument, order,
judgment or decree to which the Company is subject.
The Company will, to the fullest extent permitted by
applicable law, as from time to time in effect,
indemnify Executive and hold Executive harmless for
any breach of its representations set forth in this
subparagraph (ii).
(b) DIVISIBILITY OF THE AGREEMENT. If any provision of this
Agreement or any portion thereof is declared invalid,
illegal, or incapable of being enforced by any court of
competent jurisdiction, the remainder of such provisions and
all of the remaining provisions of this Agreement shall
continue in full force and effect.
(c) CHOICE OF LAW. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with
the internal laws of the State of Arkansas without reference
to the choice of law provisions of such State's law, except
with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to
or the subject of this Agreement, and as to those matters of
the law the jurisdiction under which the respective entity
derives its powers shall govern, and to the extent governed
by federal law.
(d) ASSIGNMENT. This Agreement shall be binding on and shall
inure to the benefit of the parties to it and their
respective heirs, legal representatives, successors and
assigns, except as otherwise provided herein. The Company may
assign this Agreement to any direct or indirect subsidiary or
parent of the Company or joint venture in which the Company
has an interest, or any successor (whether by merger,
consolidation, purchase or otherwise) to all or substantially
all of the stock, assets or business of the Company and this
Agreement shall be binding upon and inure to the benefit of
such successors and assigns; provided however that no such
assignment shall relieve Company of its obligations due to
Executive hereunder. Except as expressly provided herein,
Executive may not sell, transfer, assign, or pledge any of
her rights or interests pursuant to this Agreement.
(e) NO ABROGATION. Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under
benefit plans, agreements, or
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arrangements of the Company to which he is a party or in
which he is a participant, including, but not limited to, any
Company-sponsored employee benefit plans. Provisions of this
Agreement shall not in any way abrogate Executive's rights
under such other plans, agreements, or arrangements.
(f) NOTICE. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly
given when personally delivered or one day after delivery to
an overnight air courier guaranteeing next day delivery,
addressed as follows:
If to Executive: Xxxxx Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
If to the Company: Pet Quarters, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, CEO
With copies to: Xxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: C. Xxx Xxxxxxxx
or to such other address as any party may have furnished to
the others in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt.
(g) HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(h) WAIVER. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be
deemed a waiver of such term, covenant, or condition, nor
shall any waiver or relinquishment of, or failure to insist
upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
(i) EXECUTIVE'S ACKNOWLEDGMENT. Executive acknowledges (i) that
he has consulted with or has had the opportunity to consult
with independent counsel of his own choice concerning this
Agreement and has been advised to do so by the Company, and
(ii) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely
based on his own judgment.
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(j) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
(k) ENTIRE AGREEMENT; AMENDMENT. This Agreement (i) contains a
complete statement of all the arrangements between the
parties with respect to Executive's employment by the
Company, (ii) supersedes all prior and existing negotiations
and agreements between the parties concerning Executive's
employment and (iii) can only be changed or modified pursuant
to a written instrument duly executed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE
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Xxxxx Xxxxxxx
PET QUARTERS, INC.
By:
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Xxxxxx X. Xxxxxxx, CEO
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