AMENDMENT TO EXECUTIVE
EMPLOYMENT AGREEMENT
This Amendment
(this “Amendment”) is made effective as of
August 14, 2008, by and between PET DRX CORPORATION, a
Delaware corporation (the “Company”), and GREGORY J.
EISENHAUER (the “Executive”).
WHEREAS, the
Executive and the Company’s wholly owned subsidiary, XLNT
Veterinary Care, Inc., a Delaware corporation, are parties to the
Executive Employment Agreement made effective as of
October 19, 2007 (the “Employment
Agreement”);
WHEREAS, the
Company and the Executive desire to amend the Employment Agreement
by execution of this Amendment;
WHEREAS, the
Executive has notified the Company of his decision to resign
voluntarily from his employment with the Company; and
WHEREAS, the
Company and the Executive desire that the Executive will remain
employed by the Company through November 30, 2008 to ensure a
smooth transition, subject to the terms and conditions of this
Amendment;
NOW, THEREFORE, in
consideration of the mutual promises in this Amendment, the parties
hereby amend the Employment Agreement as follows:
1. Notwithstanding
the terms of Section 2 of the Employment Agreement, the
term of the Executive’s employment shall end on the earlier
of: (i) November 30, 2008, and (ii) the date of
termination of employment in accordance with Section 5 (the
“Employment Term”). At the end of the Employment Term,
Executive will cease to be employed by the Company at the close of
business on such date, without the requirement of any further
action by any party, and in such case, the Executive will be deemed
to have voluntarily resigned on such date as an employee and
officer and from all positions he holds with the Company and its
subsidiaries.
2. During the
Employment Term, the Executive shall continue to serve as, and
carry out the duties of, the chief financial officer of the
Company, which duties shall continue to include responsibility for,
and oversight of, the preparation of the Company’s Form 10-Q
for the quarterly periods ended June 30, 2008 and
September 30, 2008, respectively, to be filed with the U.S
Securities and Exchange Commission and shall sign the related
certifications as the principal financial officer of the
Company.
3. (a)
Section 4(a) of the Employment Agreement is amended by
deleting the last sentence thereof.
(b)
Section 4(b) of the Employment Agreement is amended by
deleting the existing language thereof and adding in lieu thereof
the following:
“If the
Executive remains employed by the Company through November 30,
2008, the Company will pay the Executive a cash lump sum bonus of
$55,000 (the “Retention Bonus”). Additionally,
Executive agrees that his option to purchase 44,000 shares of the
common stock of the Company at an exercise price of $6.50 per share
granted to him on March 28, 2008 is hereby forfeited as of the
date hereof. Payment of the Retention Bonus is contingent upon the
Executive executing and returning to the Company the Separation
Agreement attached hereto as Exhibit A to this
Amendment within five (5) days following his termination of
employment, and not revoking the Separation Agreement within seven
(7) days after its execution.”
4. (a)
Section 5(b) of the Employment Agreement is revised by
deleting therefrom Paragraph (i), Paragraph (ii) and Paragraph
(iv), and by deleting from Paragraph (iii) the words
“and/or potential Annual Bonus opportunity of the
Executive”.
(b)
Section 5(c) of the Employment Agreement is deleted and
replaced with the following language:
“The Company
may terminate the Employment Agreement and the Executive’s
employment without Cause at any time. In the event that the
Executive’s employment is terminated by the Company without
Cause (other than due to the Executive’s death or
Disability), the Executive shall be entitled to:
(i) the Accrued
Obligations, which shall be paid when such amounts would have been
paid if the Executive had remained employed following such
termination by the Company without Cause;
(ii) the
Executive’s Annual Base Salary prorated from the termination
date through November 30, 2008, payable in accordance with the
Company’s standard payroll practices, and the Retention Bonus
payable in on November 30, 2008;
(iii) continuation
of all of the health, dental, life and other benefits previously
provided to the Executive under the Company’s plans for the
shorter of (i) the period through November 30, 2008 and
(ii) the period that the Executive is entitled to continuation
of health coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”); provided that the
Executive must elect COBRA coverage to be entitled to this benefit,
and provided further that:
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(A) if any such
plan is fully insured, then the Executive shall be required to pay
as each COBRA premium an amount equal to the allocable share of the
cost of coverage for similarly situated active employees of the
Company under such plan; or
(B) if any such
plan is not fully insured, the Executive shall be required to pay
the full COBRA premium and the Company will reimburse the Executive
for a portion of the COBRA premium charged to the Executive that
represents the Company’s allocable share of the cost of
coverage for similarly situated active employees of the Company
under such plan;
provided,
however, that as a condition of receiving the payments in
paragraphs (ii) through (iv), the Executive must execute and
return the Separation Agreement attached hereto as
Exhibit A to the Company within five (5) days
following his termination of employment, and not return a
revocation of the Separation Agreement for the Company’s
receipt within seven (7) days after the Executive executes the
Separation Agreement.”
5. This
Amendment shall supersede any contrary or inconsistent provisions
of the Employment Agreement, notwithstanding that any such
provisions of the Employment Agreement that may not be specifically
amended by this Amendment.
6. Except as
specifically provided in this Amendment, the terms of the Agreement
shall remain in full force and effect.
IN WITNESS
WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
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PET DRX
CORPORATION
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Date:
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By:
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Name:
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Steven T.
Johnson
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Title:
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President and
COO
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Date:
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GREGORY J.
EISENHAUER
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3
THIS AGREEMENT
(this “ Agreement ”) is made and entered into as
of the ___day of _________, 2008, by and among PET DRX CORPORATION,
a Delaware corporation (the “ Company ”) and
GREGORY J. EISENHAUER (“ Executive
”).
Executive was
employed by the Company through _________, 2008, pursuant to that
certain employment agreement dated October 19, 2007 (the
“ Employment Agreement ”), as amended by the
Amendment dated August 14, 2008 (the “ Amendment
”). Effective _________, 2008, Executive’s employment
terminated. In connection with Executive’s termination of
employment and the execution of this Agreement, the Company agrees
to provide Executive with the payments and benefits described in
Section 4(b) or 5(c), as applicable, of the Amendment.
In consideration
for the mutual promises contained in this Agreement, the Company
and Executive agree as follows:
1.
Employment Termination .
(a)
General Terms . The Company and Executive agree
that:
(1) Executive
ceased to be an employee and officer of the Company as of
_________, 2008 (the “ Termination Date ”);
and
(2) Executive
hereby resigns, effective as of the date he signs this Agreement,
from any and all titles and positions with the Company. Executive
agrees to tender and memorialize his resignation from any and all
such positions in any other manner and form as the Company may
reasonably request.
(b)
Satisfaction of Obligations . The payments, benefits and
other consideration provided by the Company under Section 4(b) or
5(c), as applicable, of the Amendment are in full and final
satisfaction of all obligations that the Company has to Executive,
except as provided in Section 3(a) hereof. Without limiting the
foregoing, these payments and benefits replace any and all
obligations of the Company under any and all letters, agreements,
understandings, plans and policies, relating to Executive’s
employment and severance, except as provided in Section 3(a)
hereof. Executive agrees that the payments and benefits described
in Section 4(b) or 5(c), as applicable, of the Amendment are
adequate consideration for (i)&
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