8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

____________________

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of Earliest Event Reported): June 30, 2010

VCA ANTECH, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware	001-16783	95-4097995
(State or Other Jurisdiction	(Commission	(IRS Employer
of Incorporation)	File Number)	Identification No.)

12401 West Olympic Boulevard

Los Angeles, California 90064-1022

(Address of Principal Executive Offices, Zip Code)

(310) 571-6500

(Registrant’s Telephone Number, Including Area Code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

[  ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[  ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[  ]  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[  ]  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

1

Item 5.02Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Supplemental Executive Retirement Program

On June 30, 2010, VCA Antech, Inc. (the “Company”) executed a Supplemental Executive Retirement Program (“SERP”) agreement with each of the following executive officers of the Company: Robert L. Antin, Arthur J. Antin, Neil Tauber and Tomas W. Fuller. The material provisions of the SERP agreement for each executive officer are summarized below.

ROBERT L. ANTIN

Pursuant to the SERP agreement Mr. Antin will be entitled to monthly benefit payments when he reaches the age of 66 (the “Benefit Commencement Date”). The annual amount of the benefit payments will be equal to the vested percentage of Final Salary as of the date his employment terminates. Final Salary is equal to the greater of (i) Mr. Antin’s annual base compensation paid in cash pursuant to his employment agreement immediately prior to the Benefit Commencement Date, or (ii) the average of Mr. Antin’s annual base compensation paid in cash pursuant to his employment agreement for the three highest years during the ten year period ending on December 31^st immediately preceding the Benefit Commencement Date. The vested percentage on the date Mr. Antin’s employment terminates is as follows:

Date	Vested Percentage
Effective Date of SERP	20%
December 31, 2010	30%
December 31, 2011	40%
December 31, 2012	50%

The payments to which Mr. Antin is entitled will extend for 12 years following the Benefit Commencement Date.

The applicable percentage immediately will be 50% if before or coincident with Mr. Antin’s separation from employment there occurs a Change in Control, an involuntary termination by the Company without Cause, a voluntary termination by Mr. Antin for Good Reason, or Mr. Antin’s death or Disability. If before the Benefit Commencement Date, there is a change in control that qualifies as a “change in control event” within the meaning of Treasury Regulation section 1.409A-3(i)(5) or Mr. Antin dies or becomes Disabled, then the actuarial equivalent of the monthly benefits owing to Mr. Antin must be paid in a lump sum on the date of such event. In addition, if a change in control that is also a “change in control event” occurs after the Benefit Commencement Date, then the SERP agreement terminates and the actuarial equivalent of any remaining monthly benefits owing to Mr. Antin must be paid in a lump sum on the date of such change in control event.

2

ARTHUR J. ANTIN

Pursuant to the SERP agreement Mr. Antin will be entitled to monthly benefit payments when he reaches the age of 67 (the “Benefit Commencement Date”). The annual amount of the benefit payments will be equal to the vested percentage of Final Salary as of the date his employment terminates. Final Salary is equal to the greater of (i) Mr. Antin’s annual base compensation paid in cash pursuant to his employment agreement immediately prior to the Benefit Commencement Date, or (ii) the average of Mr. Antin’s annual base compensation paid in cash pursuant to his employment agreement for the three highest years during the ten year period ending on December 31^st immediately preceding the Benefit Commencement Date. The vested percentage on the date Mr. Antin’s employment terminates is as follows:

Date	Vested Percentage
Effective Date of SERP	20%
December 31, 2010	30%
December 31, 2011	40%
December 31, 2012	50%

The payments to which Mr. Antin is entitled will extend for 12 years following the Benefit Commencement Date.

The applicable percentage immediately will be 50% if before or coincident with Mr. Antin’s separation from employment there occurs a Change in Control, an involuntary termination by the Company without Cause, a voluntary termination by Mr. Antin for Good Reason, or Mr. Antin’s death or Disability. If before the Benefit Commencement Date, there is a change in control that qualifies as a “change in control event” within the meaning of Treasury Regulation section 1.409A-3(i)(5) or Mr. Antin dies or becomes Disabled, then the actuarial equivalent of the monthly benefits owing to Mr. Antin must be paid in a lump sum on the date of such event. In addition, if a change in control that is also a “change in control event” occurs after the Benefit Commencement Date, then the SERP agreement terminates and the actuarial equivalent of any remaining monthly benefits owing to Mr. Antin must be paid in a lump sum on the date of such change in control event.

3

NEIL TAUBER

Pursuant to the SERP agreement Mr. Tauber will be entitled to monthly benefit payments when he reaches the age of 66 (the “Benefit Commencement Date”). The annual amount of the benefit payments will be equal to the vested percentage of Final Salary as of the date his employment terminates. Final Salary is equal to the greater of (i) Mr. Tauber’s annual base compensation paid in cash immediately prior to the Benefit Commencement Date, or (ii) the average of Mr. Tauber’s annual base compensation paid in cash for the three highest years during the ten year period ending on December 31^st immediately preceding the Benefit Commencement Date. The vested percentage on the date Mr. Tauber’s employment terminates is as follows:

Date	Vested Percentage
December 31, 2010	10%
December 31, 2011	20%
December 31, 2012	30%
December 31, 2013	40%
December 31, 2014	50%

The payments to which Mr. Tauber is entitled will extend for 12 years following the Benefit Commencement Date.

The applicable percentage immediately will be 50% if before or coincident with Mr. Tauber’s separation from employment there occurs a Change in Control, an involuntary termination by the Company without Cause, a voluntary termination by Mr. Tauber for Good Reason, or Mr. Tauber’s death or Disability. If before the Benefit Commencement Date, there is a change in control that qualifies as a “change in control event” within the meaning of Treasury Regulation section 1.409A-3(i)(5) or Mr. Tauber dies or becomes Disabled, then the actuarial equivalent of the monthly benefits owing to Mr. Tauber must be paid in a lump sum on the date of such event. In addition, if a change in control that is also a “change in control event” occurs after the Benefit Commencement Date, then the SERP agreement terminates and the actuarial equivalent of any remaining monthly benefits owing to Mr. Tauber must be paid in a lump sum on the date of such change in control event.

TOMAS W. FULLER

Pursuant to the SERP agreement Mr. Fuller will be entitled to monthly benefit payments when he reaches the age of 62 (the “Benefit Commencement Date”). The annual amount of the benefit payments will be equal to the vested percentage of Final Salary as of the date his employment terminates. Final Salary is equal to the greater of (i) Mr. Fuller’s annual base compensation paid in cash pursuant to his employment agreement immediately prior to the Benefit Commencement Date, or (ii) the average of Mr. Fuller’s annual base compensation paid in cash pursuant to his employment agreement for the three highest years during the ten year

4

period ending on December 31^st immediately preceding the Benefit Commencement Date. The vested percentage on the date Mr. Fuller’s employment terminates is as follows:

Date	Vested Percentage
December 31, 2010	10%
December 31, 2011	20%
December 31, 2012	30%
December 31, 2013	40%
December 31, 2014	50%

The payments to which Mr. Fuller is entitled will extend for 12 years following the Benefit Commencement Date.

The applicable percentage immediately will be 50% if before or coincident with Mr. Fuller’s separation from employment there occurs a Change in Control, an involuntary termination by the Company without Cause, a voluntary termination by Mr. Fuller for Good Reason, or Mr. Fuller’s death or Disability. If before the Benefit Commencement Date, there is a change in control that qualifies as a “change in control event” within the meaning of Treasury Regulation section 1.409A-3(i)(5) or Mr. Fuller dies or becomes Disabled, then the actuarial equivalent of the monthly benefits owing to Mr. Fuller must be paid in a lump sum on the date of such event. In addition, if a change in control that is also a “change in control event” occurs after the Benefit Commencement Date, then the SERP agreement terminates and the actuarial equivalent of any remaining monthly benefits owing to Mr. Fuller must be paid in a lump sum on the date of such change in control event.

The foregoing descriptions of the SERP agreements are qualified in their entirety by the terms of such agreements, copies of which are attached as exhibits 10.1, 10.2, 10.3, and 10.4 to this Current Report on Form 8-K and incorporated herein by reference.

Consulting Agreements

On June 30, 2010, the Company executed a consulting agreement with each of the following executive officers of the Company: Robert L. Antin, Arthur J. Antin, Neil Tauber and Tomas W. Fuller. The material provisions of the consulting agreement for each executive officer are summarized below.

ROBERT L. ANTIN

The consulting agreement for Robert L. Antin (the “R. Antin Consulting Agreement”) provides that Mr. Antin will provide business consulting and advice (the “Services”) to the Company following his full-time employment with the Company. The term of the R. Antin Consulting Agreement commences on the date of Mr. Antin’s voluntary termination and continues for the next five years (the “Term”).

5

Mr. Antin will receive annual compensation equal to 100% of his Final Compensation for the first and second years of the Term, and 75% of his Final Compensation during the third, fourth and fifth years of the Term. “Final Compensation” is the greater of (i) Mr. Antin’s annual base compensation paid in cash immediately prior to Mr. Antin’s voluntary termination, plus the highest bonus earned by Mr. Antin with respect to services rendered during the four preceding full calendar years before Mr. R. Antin’s voluntary termination, or (ii) the average of Mr. Antin’s annual base compensation paid in cash plus any bonus earned for the two highest years during the five-year period ending on December 31^st immediately preceding Mr. Antin’s voluntary termination. During the Term, Mr. Antin also will be entitled to insurance and welfare benefits and certain other perquisites detailed in the R. Antin Consulting Agreement.

Mr. Antin will be entitled to the amount he would have earned over the remaining Term if the consulting agreement is terminated as a result of his death or Disability, or by the Company without “Cause”, by Mr. Antin for Good Reason, or upon a Change in Control. In addition, in such an event, vesting will accelerate on all outstanding stock options and other equity awards held by Mr. Antin (except that in the case of Mr. Antin’s death or Disability only those awards that would otherwise have vested and become exercisable during the 24 months immediately following the date of his death or Disability, respectively, will accelerate).

If any of the payments or benefits due Mr. Antin under the R. Antin Consulting Agreement or any other plan, agreement or arrangement qualify as “excess parachute payments” under the Internal Revenue Code, Mr. Antin also is entitled to an additional payment to cover the tax consequences associated with excess parachute payments.

The payments under the R. Antin Consulting Agreement will be in lieu of any amounts that would have been payable under Mr. Antin’s five year employment agreement.

ARTHUR J. ANTIN

The consulting agreement for Arthur J. Antin (the “A. Antin Consulting Agreement”) provides that Mr. Antin will provide the Services to the Company following his full-time employment with the Company. The term of the A. Antin Consulting Agreement commences on the date of Mr. Antin’s voluntary termination and continues for the next four years (the “Term”).

Mr. Antin will receive annual compensation equal to 100% of his Final Compensation for the first year of the Term, 75% of his Final Compensation during the second year of the Term, 50% of his Final Compensation during the third year of the Term and 25% of his Final Compensation during the fourth year of the term. “Final Compensation” is the greater of (i) Mr. Antin’s annual base compensation paid in cash immediately prior to Mr. Antin’s voluntary termination, plus the highest bonus earned by Mr. Antin with respect to services rendered during the four preceding full calendar years before Mr. Antin’s voluntary termination or (ii) the average of Mr. Antin’s annual base compensation paid in cash plus any bonus earned for the two highest years during the five-year period ending on December 31^st immediately preceding Mr. Antin’s voluntary termination. During the Term, Mr. Antin also will be entitled to insurance and welfare benefits and certain other perquisites detailed in the A. Antin Consulting Agreement.

Mr. Antin will be entitled to the amount he would have earned over the remaining Term if the consulting agreement is terminated as a result of his death or Disability, or by the Company without “Cause”, by Mr. Antin for Good Reason, or upon a Change in Control. In addition, in

6

such an event vesting will accelerate on all outstanding stock options and other equity awards held by Mr. Antin (except that in the case of Mr. Antin’s death or Disability only those awards that would otherwise have vested and become exercisable during the 24 months immediately following the date of his death or Disability, respectively, will accelerate).

If any of the payments or benefits due Mr. Antin under the A. Antin Consulting Agreement or any other plan, agreement or arrangement qualify as “excess parachute payments” under the Internal Revenue Code, Mr. Antin also is entitled to an additional payment to cover the tax consequences associated with excess parachute payments.

The payments under the A. Antin Consulting Agreement will be in lieu of any amounts that would have been payable under Mr. Antin’s three year employment agreement.

NEIL TAUBER

The consulting agreement for Neil Tauber (the “Tauber Consulting Agreement”) provides that Mr. Tauber will provide the Services to the Company following his full-time employment with the Company. The term of the Tauber Consulting Agreement commences on the date of Mr. Tauber’s voluntary termination and continues for the next three years (the “Term”).

Mr. Tauber will receive annual compensation equal to 100% of his Final Compensation for the first year of the Term, 50% of his Final Compensation during the second year of the Term and 35% of his Final Compensation during the third year of the Term. “Final Compensation” is the greater of (i) Mr. Tauber’s annual base compensation paid in cash immediately prior to Mr. Tauber’s voluntary termination, plus the highest bonus earned by Mr. Tauber with respect to services rendered during the four preceding full calendar years before Mr. Tauber’s voluntary termination or (ii) the average of Mr. Tauber’s annual base compensation paid in cash plus any bonus earned for the two highest years during the five-year period ending on December 31^st immediately preceding Mr. Tauber’s voluntary termination. During the Term, Mr. Tauber also will be entitled to insurance and welfare benefits and certain other perquisites detailed in the Tauber Consulting Agreement.

Mr. Tauber will be entitled to the amount he would have earned over the remaining Term if the consulting agreement is terminated as a result of his death or Disability, or by the Company without “Cause”, by Mr. Tauber for Good Reason, or upon a Change of Control. In addition, in such an event, vesting will accelerate on all outstanding stock options and other equity awards held by Mr. Tauber (except that in the case of Mr. Tauber’s death or Disability only those awards that would otherwise have vested and become exercisable during the 24 months immediately following the date of his death or Disability, respectively, will accelerate).

If any of the payments or benefits due Mr. Tauber under the Tauber Consulting Agreement or any other plan, agreement or arrangement qualify as “excess parachute payments” under the Internal Revenue Code, Mr. Tauber also is entitled to an additional payment to cover the tax consequences associated with excess parachute payments.

The payments under the Tauber Consulting Agreement will be in lieu of any amounts that would have been payable under Mr. Tauber’s two year severance agreement.

       7

TOMAS W. FULLER

The consulting agreement for Mr. Fuller (the “Fuller Consulting Agreement”) provides that Mr. Fuller will provide the Services to the Company following his full-time employment with the Company. The term of the Fuller Consulting Agreement commences on the date of Mr. Fuller’s voluntary termination and continues for the next three years (the “Term”).

Mr. Fuller will receive annual compensation equal to 100% of his Final Compensation for the first year of the Term, 50% of his Final Compensation during the second year of the Term and 25% of his Final Compensation during the third year of the Term. “Final Compensation” is the greater of (i) Mr. Fuller’s annual base compensation paid in cash immediately prior to Mr. Fuller’s voluntary termination, plus the highest bonus earned by Mr. Fuller with respect to services rendered during the four preceding full calendar years before Mr. Fuller’s voluntary termination or (ii) the average of Mr. Fuller’s annual base compensation paid in cash plus any bonus earned for the two highest years during the five-year period ending on December 31^st immediately preceding Mr. Fuller’s voluntary termination. During the Term, Mr. Fuller also will be entitled to insurance and welfare benefits and certain other perquisites detailed in the Fuller Consulting Agreement.

Mr. Fuller will be entitled to the amount he would have earned over the remaining Term if the consulting agreement is terminated as a result of his death or Disability, or by the Company without “Cause”, by Mr. Fuller for Good Reason, or upon a Change in Control. In addition, in such an event, vesting will accelerate on all outstanding stock options and other equity awards held by Mr. Fuller (except that in the case of Mr. Fuller’s death or Disability only those awards that would otherwise have vested and become exercisable during the 24 months immediately following the date of his death or Disability, respectively, will accelerate).

If any of the payments or benefits due Mr. Fuller under the Fuller Consulting Agreement or any other plan, agreement or arrangement qualify as “excess parachute payments” under the Internal Revenue Code, Mr. Fuller also is entitled to an additional payment to cover the tax consequences associated with excess parachute payments.

The payments under the Fuller Consulting Agreement will be in lieu of any amounts that would have been payable under Mr. Fuller’s two year employment agreement.

The foregoing descriptions of the Consulting Agreements are qualified in their entirety by the terms of such agreements, copies of which are attached as exhibits 10.5, 10.6, 10.7, and 10.8 to this Current Report on Form 8-K and incorporated herein by reference.

8

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit No. Description

10.1 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Robert L. Antin.

10.2 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Arthur J. Antin.

10.3 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Neil Tauber.

10.4 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Tomas W. Fuller.

10.5 Consulting Agreement, by and between VCA Antech, Inc. and Robert L. Antin.

10.6 Consulting Agreement, by and between VCA Antech, Inc. and Arthur J. Antin.

10.7 Consulting Agreement, by and between VCA Antech, Inc. and Neil Tauber.

10.8 Consulting Agreement, by and between VCA Antech, Inc. and Tomas W. Fuller.

9

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

July 7, 2010 VCA ANTECH, INC.

By:      /s/ Tomas W. Fuller
Name: Tomas W. Fuller
Title:    Chief Financial Officer

10

Exhibit Index

Exhibit No. Description

10.1 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Robert L. Antin.

10.2 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Arthur J. Antin.

10.3 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Neil Tauber.

10.4 Supplemental Executive Retirement Program Agreement, by and between VCA Antech, Inc. and Tomas W. Fuller.

10.5 Consulting Agreement, by and between VCA Antech, Inc. and Robert L. Antin.

10.6 Consulting Agreement, by and between VCA Antech, Inc. and Arthur J. Antin.

10.7 Consulting Agreement, by and between VCA Antech, Inc. and Neil Tauber.

10.8 Consulting Agreement, by and between VCA Antech, Inc. and Tomas W. Fuller.

11

EX-10

SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM

THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM (this “Program”) is made and entered into effective as of June 28, 2010 (the “Effective Date”), by and between VCA Antech, Inc., a Delaware Corporation (“Company”), and Robert L. Antin, an individual (“Executive”).

RECITALS

WHEREAS, Executive and Company are parties to that certain Employment Agreement dated as of September 20, 2000, amended and restated as of November 27, 2001 (the “Employment Agreement”), and further amended from time to time;

WHEREAS, the Employment Agreement provides that, during the term of Executive’s employment with Company, Company shall provide Executive Supplemental Retirement Benefit under a “Supplemental Executive Retirement Program”, and Company desires to establish such Supplemental Executive Retirement Program in accordance with the Employment Agreement; and

WHEREAS, this Program is a nonqualified supplemental retirement plan, and is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

PROGRAM

1.Program. Company hereby establishes this Program pursuant to the Employment Agreement.

2.     Definitions.

(a)       “Accrued Benefit Percentage”means the percentage of Final Salary specified in Section ?3(c) earned as of each Anniversary Date during the Accrual Period.

(b)       “Accrual Period” means the period beginning January 1, 2009 through December 31, 2012.

(c)       “Actuarial Equivalent” means a benefit of equivalent value when computed on the basis of a present value discount rate equal to four percent (4%) per annum.

(d)       “Anniversary Date” means December 31 of each year, except as otherwise specified in Section 3(c).

Execution Copy

(e)       “Base Salary” means the Executive’s regular recurring base compensation paid in cash by the Company pursuant to the terms of the Employment Agreement for personal services actually rendered in the course of employment with the Company, including salary deferrals pursuant to any salary reduction agreement under Section 125 or 401(k) of the Code that are not currently includible in the Executive’s gross income, but excluding bonuses, reimbursements and other expense allowances, Company contributions to any Company profit-sharing plan and amounts credited under any other qualified or non-qualified plan of deferred compensation, other than salary deferrals pursuant to a salary reduction agreement under Section 401(k) of the Code.

(f)        “Beneficiary” means the person, persons or entity designated by the Executive to receive benefits in the event of the Executive’s death. In the absence of any effective designation, the Executive’s Beneficiary shall be the Executive’s surviving legal spouse. If such spouse dies before receiving payment to which he or she is entitled hereunder, then payment shall be made to such person or persons, including his estate, as he or she may designate in the last Beneficiary designation received by the Plan Administrator from such spouse prior to his death. If the Executive is not survived by a legal spouse, or if such spouse shall fail to so designate, the said payment shall be made to the then living children of the Participant, if any, in equal shares. If there are no surviving children, the payment will be made to the estate of the later to die of the Executive and (if any) his legal spouse.

(g)       “Benefit Commencement Date” means the first day of the calendar month next following the Executive’s attainment of Normal Retirement Age.

(h)       “Benefit Period”means the period of 144 months following Executive’s Benefit Commencement Date.

(i) “Board of Directors” means the Board of Directors of the Company.

(j)        “Cause” means Executive’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(k) “Change in Control” has the meaning set forth in Section ‎3(g) hereof.

(l) “Claimant” has the meaning set forth in Section ‎14(a) hereof.

(m)      “Claims Administrator” has the meaning set forth in Section ?14(a) hereof.

(n)       “Code” means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(o) “Company” means VCA Antech, Inc., a Delaware Corporation.

 

2 Execution Copy

(p)       “Disability” means (i) the inability of Executive to perform any substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months, as determined by the reasonable judgment of a physician selected by Executive (or Executive’s legal guardian if Executive is incapacitated) and reasonably acceptable to the Company, (ii) if the Executive is by reason of any medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Company, or (iii) Executive is determined to be totally disabled by the Social Security Administration.

(q)       “Effective Date” means the date of adoption of this Program by the Board of Directors specified in the first paragraph hereof.

(r)        “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(s)       “Employment Agreement”has the meaning set forth in the Recitals to this Program.

(t)        “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Reference to a specific provision of the Exchange Act shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(u)       “Executive” means the Executive designated in the introductory paragraph of this Program.

(v)       “Final Salary” means the amount that is the greater of: (i) Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) payable immediately prior to Executive’s Benefit Commencement Date, or (ii) the average of Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) for the three highest years during the ten year period ending on the December 31^st immediately preceding Executive’s Benefit Commencement Date.

(w)      “Good Reason” means the Executive’s termination of employment upon written notice of termination delivered by Executive to the Company within two years following the initial existence of one or more of the following conditions without Executive’s consent:

1.         The breach by Company of any of the material obligations of the Company to Executive under this Agreement or under any employment or consulting agreement between Executive and the Company, or

 

3 Execution Copy

2.         The relocation of the office where Executive is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Executive must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company shall have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Executive will not be entitled to terminate employment for Good Reason.

(x)       “Named Fiduciary” means the person, entity or Committee designated by the Board of Directors to hear appeals of a denied claim for benefits under the Program. Unless otherwise designated by the Board of Directors, the Named Fiduciary will be the Compensation Committee of the Board of Directors.

(y) “Normal Retirement Age” means the attainment of age 66.

(z) “Program” means this Supplemental Executive Retirement Program.

(aa)     “Separation from Service” means the termination of the Participant’s employment with the Company and all affiliated companies so as to constitute a separation from service under Section 1.409A-1(h)(1) of the Treasury Regulations. Solely for purposes of determining whether a Separation from Service has occurred, “affiliated company” is defined as (i) any corporation that is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) with the Company, or (ii) a trade or business under common control (as defined in Section 414(c) of the Code) with the Company, provided that in applying Section 1503(a) of the Code for purposes of determining a controlled group of corporations under Code Section 414(b), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1503(a), and in applying Section 1.414(c)-2 of the Treasury Regulations for purposes of determining a trade or business under common control under Code Section 414(c), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1.414(c)-2.

(bb)     “Supplemental Retirement Benefit” means the benefit payable in accordance with the provisions of Section ?3, hereof.

                3.              Supplemental Retirement Benefit.

(a)       Upon the Benefit Commencement Date, Executive shall receive a Supplemental Retirement Benefit under this Section ?3. Except as provided in Section ?3?(f) hereof, Executive’s Supplemental Retirement Benefit shall consist of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the amount determined in Section ?3?(b) hereof. Such Supplemental Retirement Benefit shall be fully vested and nonforfeitable.

(b)       The Supplemental Retirement Benefit will be paid in 144 monthly benefit payments beginning on the Benefit Commencement Date in an amount equal to one-twelfth of

 

4 Execution Copy

the Accrued Benefit Percentage determined under the table in Section ?3?(c) hereof multiplied by the Final Salary for the Benefit Period.

(c)       The Accrued Benefit Percentage shall be a percentage of Final Salary as of each Anniversary Date within the Accrual Period for which Executive continues to be employed by the Company without experiencing a Separation from Service, as specified below:

Employment Anniversary Date	Accrued Benefit Percentage
Effective Date	20%
December 31, 2010	30%
December 31, 2011	40%
December 31, 2012	50%

Notwithstanding anything to the contrary in the above schedule, in the event that prior to or coincident with Executive’s Separation from Service there occurs any of the following:

1. a Change in Control;

2. an involuntary termination by the Company without Cause;

3. a voluntary termination by Executive for Good Reason;

4. Executive’s death; or

5. Executive’s Disability;

the Accrued Benefit Percentage will be 50%, calculated as if Executive continued to be employed through the end of the Accrual Period.

(d)       The payments and benefits under this Program constitute nonqualified deferred compensation subject to the application of Section 409A of the Code. The payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Program shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Program to the contrary, the Company may adopt such amendments to this Program or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Program from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Executive otherwise would be entitled to under this Program without the written consent of Executive. Executive shall not, directly or indirectly, designate the taxable year of a payment made under this Program. Any right to a series of installment payments pursuant to this Program is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4), or within the involuntary separation pay limit under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) shall

 

5 Execution Copy

be treated as a separate payment. Payment dates provided for in this Program shall be deemed to incorporate “grace periods” within the meaning of Section 409A of the Code.

(e)       In addition, notwithstanding anything to the contrary in this Program, no Supplemental Retirement Benefit, shall be paid to Executive during the 6-month period following Executive’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Program would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Executive’s death), the Company shall pay Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period.

(f)        Acceleration of Payments. Notwithstanding anything herein to the contrary, upon the occurrence of (i) a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), (ii) the Executive’s death or (iii) the Executive’s Disability, any of which occurs prior to the Benefit Commencement Date, the Company will pay to Executive in a lump sum on the date of the Change in Control, death or Disability, the Actuarial Equivalent of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the Supplemental Retirement Benefit that would be payable to Executive on the Benefit Commencement Date had a Change of Control, death or Disability not occurred, calculated as if Executive continued to be employed through the end of the Accrual Period. In addition, upon the occurrence of a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), which occurs after the Benefit Commencement Date, this Agreement will terminate and the Actuarial Equivalent of any remaining monthly benefit payments will be paid in a lump sum on the date of the Change in Control.

(g)       Change in Control Definition. For purposes of this Section, a “Change in Control” of the Company shall be deemed to have occurred if (i) 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 (ii) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or (iii) any person shall become the beneficial owner of 25% or more of the Company’s outstanding common stock; or (iv) 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

 

6 Execution Copy

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.

4.         Prohibition on Assignments. No part of the Supplemental Retirement Benefit shall be liable for the debts, contracts or engagements of Executive or his successors in interest, or be taken in execution by levy, attachment or garnishment or by any other legal or equitable proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge, encumber or assign any Supplemental Retirement Benefit or any interest therein in any manner whatsoever.

5.         Unfunded Obligations of Company. The obligations of Company under the Program shall be unfunded and unsecured, and nothing contained herein shall be construed as providing for assets to be held in trust or escrow or any other form of segregation of the assets of Company for the benefit of Executive or any other person. The interest of Executive or any other person hereunder shall be limited to the right to receive the Supplemental Retirement Benefit as set forth herein. To the extent that Executive or any other person acquires a right to receive any benefit under the Program, such right shall be no greater than the right of an unsecured general creditor of Company. For tax purposes and for purposes of Title I of ERISA, this Program is intended to qualify as an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, and shall be interpreted accordingly. No action by the Company, its Board of Directors, or the Claims Administrator under this Program shall be construed as creating a trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind in favor of any Participant or Beneficiary or any other persons otherwise entitled to benefits under the Program. The status of the Participant and any Beneficiary with respect to any liabilities assumed by the Company hereunder shall be solely that of unsecured creditors of the Company. The Program constitutes a mere promise by the Company to make benefit payments in the future. Any insurance policy or any other asset acquired or held by the Company in connection with liabilities assumed by it hereunder, shall not be deemed to be held under any trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind for the benefit of a Participant or Beneficiary or to be security for the performance of the obligations of the Company, but shall be, and remain a general, unpledged, unrestricted asset of the Company at all times subject to the claims of general creditors of the Company. Inclusive of the foregoing, the Company may transfer assets, including any informal funding vehicles, to a grantor trust of the type known as a “Rabbi Trust” with the Company as grantor and owner of such trust.

6.         Administrative Provisions. Company shall be the administrator of the Program and shall administer the Program in accordance with the terms of the Program and ERISA.

(a)       Company shall have the discretion, power and authority: (i) to engage actuaries, attorneys, accountants, or other firms or persons and to rely upon the reports or advice of such persons except as otherwise required by law and (ii) to delegate any duty, power or responsibility to any firm or other person engaged under clause (i) or to any other person or persons.

(b)       This Program shall be administered, interpreted and applied fairly and equitably by the Company in its discretion and in accordance with the specified purposes of this

 

7 Execution Copy

Program. All discretionary determinations by Company shall be binding upon all parties, to the maximum extent permitted by law. Company shall be the named fiduciary of this Program.

7.         Successors and Assigns. This Program shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Executive may not assign Executive rights or delegate Executive’s duties under this Program either in whole or in part without the prior written consent of Company. Any attempted assignment or delegation without such consent will be void.

8.         Headings. Any headings of sections of this Program are solely for the convenience of the parties hereto and are not part of this Program, nor are they to be used in its interpretation.

9.         Counterparts. This Program may be executed and delivered by facsimile, and in several counterparts; each such counterpart shall be considered as an original Program and all such executed counterparts shall constitute one Program.

10.       Notice. Any notice, request, instruction, or other document required to be given under this Program by either party to the other shall be in writing and delivered in person or by courier, or mailed by certified mail, postage prepaid, return receipt requested, to the address specified below, or to such other address as the party specifies in writing. Such notice, if in person or by courier, will be effective when delivered, and, if by mail, will be effective upon its mailing as specified:

If to Company:	If to Executive:
VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701 Attn: Chief Executive Officer	Robert L. Antin c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701

Executive shall be responsible for furnishing his current address, and the current name and address of his Beneficiary (as defined below).

11.       Entire Program. This Program sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Program, nor any waiver of any rights under this Program, shall be effective unless in writing signed by the party to be charged. The failure by either party to enforce any rights hereunder shall not be construed as a waiver of any rights of such party.

12.       Severability. If any provision of this Program shall be held or deemed to be invalid, inoperative or unenforceable, such circumstances shall not affect the validity of any other provision of this Program.

13.       Payment in the Case of Executive’s Death. In the event of the death of Executive, payments under this Program shall be made to the person designated as the Beneficiary in

 

8 Execution Copy

writing to the Company. Consent of Executive’s spouse is required for designation of a Beneficiary other than Executive’s spouse.

14. Application for Benefits.

(a)       Claim for Benefits. If Executive, Executive’s surviving spouse or Beneficiary, as the case may be (the “Claimant”) does not receive timely payment of any benefits which Claimant believes are due and payable under this Program, Claimant may file a claim for Supplemental Retirement Benefit under this Program by notifying the Company in writing, together with such other documents and information as Company may require. Within 90 days following receipt of the claim and all necessary documents and information, Company’s authorized delegate reviewing the claim (the “Claims Administrator”) shall furnish the Claimant with written notice of the decision rendered with respect to the claim. The Claims Administrator shall be designated by the Company’s Board of Directors. The Board of Directors reserves the right to change the Claims Administrator from time to time. Should special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the expiration of the initial 90 day period. The notice shall indicate the special circumstances requiring an extension of time and the date by which a final decision is expected to be rendered. In no event shall the period of the extension exceed ninety (90) days from the end of the initial 90 day period.

(b)       Content of Denial. In the case of a complete or partial denial of the Claimant’s claim, a notice written in a manner calculated to be understood by Claimant shall set forth the specific reasons for the denial, references to the Program provisions upon which the denial is based, a description of any additional information or material necessary for the Claimant to perfect the benefit claim (together with an explanation of why the material or information is necessary), and an explanation of the Program’s claims appeal procedure.

(c)       Appeals. In order to appeal the decision rendered in connection with the denial of a claim for benefits or with respect to the amount of benefits under this Program, the Claimant must follow the appeal procedures set forth in this Section ?14?(c). The appeal must be made in writing in the case where the claim is expressly rejected, within 60 days after the date of receipt of the notice of the decision with respect to the claim, or in the case where the claim has neither been approved or denied within the applicable period provided in Section ?14?(a) above, within 60 days after the expiration of the period. The Claimant may request that his or her application be given full and fair review by the Named Fiduciary designated by the Board of Directors. The Named Fiduciary shall not be the Claims Administrator nor subordinate to the Claims Administrator. The Board of Directors reserves the right to change the Named Fiduciary from time to time, and to designate a special Named Fiduciary for appeals when deemed necessary. The Claimant may review all pertinent documents and submit issues and comments in writing in connection with the appeal. The decision of the Named Fiduciary shall be made promptly, and not later than 60 days after Company’s receipt of a request for review, unless special circumstances (such as the need to hold a hearing) require an extension of time for processing. In such a case, a decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If such an extension of time is required, written notice of the extension and the special circumstances shall be given to the Claimant prior to the expiration of the initial 60 day period. The decision on review shall be in writing and shall

 

          9 Execution Copy

include specific reasons for the decision, written in a manner designed to be understood by the Claimant, with specific references to the pertinent Program provisions upon which the decision is based.

(d)       Exhaustion of Remedies. No legal action for benefits under the Plan may be brought unless and until the Claimant has exhausted his remedies under this Section ?14.

(e)       Withholding. Payments made pursuant to this Program constitute compensation, and the Company shall have the right to deduct from all such payments an amount sufficient to satisfy any federal, state and/or local tax withholding requirements, including without limitation any employment tax withholding required pursuant to Code Section 3121(v) and not previously withheld.

[remainder of this page is intentionally blank – signature page follows]

 

         10 Execution Copy

IN WITNESS WHEREOF, the parties have executed this Program as of the date set forth below.

COMPANY: VCA ANTECH, INC.	EXECUTIVE:
By:      /s/ Tomas W. Fuller Title:   Chief Financial Officer Date:   June 30, 2010	By:      /s/ Robert L. Antin     Robert L. Antin, an individual Date:  June 30, 2010

 

            11 Execution Copy

EX-10

SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM

THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM (this “Program”) is made and entered into effective as of June 28, 2010 (“Effective Date”), by and between VCA Antech, Inc., a Delaware Corporation (“Company”), and Arthur J. Antin, an individual (“Executive”).

RECITALS

WHEREAS, Company desires to establish a Supplemental Executive Retirement Program to provide retirement income benefits to Executive; and

WHEREAS, this Program is a nonqualified supplemental retirement plan, and is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

PROGRAM

1. Program. Company hereby establishes this Program for the benefit of Executive.

2. Definitions.

(a)       “Accrued Benefit Percentage”means the percentage of Final Salary specified in Section 3(c) earned as of each Anniversary Date during the Accrual Period.

(b)       “Accrual Period” means the period beginning January 1, 2009 through December 31, 2012.

(c)       “Actuarial Equivalent” means a benefit of equivalent value when computed on the basis of a present value discount rate equal to four percent (4%) per annum.

(d)       “Anniversary Date” means December 31 of each year, except as otherwise specified in Section 3(c).

(e)       “Base Salary” means the Executive’s regular recurring base compensation paid in cash by the Company pursuant to the terms of the Employment Agreement for personal services actually rendered in the course of employment with the Company, including salary deferrals pursuant to any salary reduction agreement under Section 125 or 401(k) of the Code that are not currently includible in the Executive’s gross income, but excluding bonuses, reimbursements and other expense allowances, Company contributions to any Company profit-sharing plan and amounts credited under any other qualified or non-qualified plan of deferred

Execution Copy

compensation, other than salary deferrals pursuant to a salary reduction agreement under Section 401(k) of the Code.

(f)        “Beneficiary” means the person, persons or entity designated by the Executive to receive benefits in the event of the Executive’s death. In the absence of any effective designation, the Executive’s Beneficiary shall be the Executive’s surviving legal spouse. If such spouse dies before receiving payment to which he or she is entitled hereunder, then payment shall be made to such person or persons, including his estate, as he or she may designate in the last Beneficiary designation received by the Plan Administrator from such spouse prior to his death. If the Executive is not survived by a legal spouse, or if such spouse shall fail to so designate, the said payment shall be made to the then living children of the Participant, if any, in equal shares. If there are no surviving children, the payment will be made to the estate of the later to die of the Executive and (if any) his legal spouse.

(g)       “Benefit Commencement Date” means the first day of the calendar month next following the Executive’s attainment of Normal Retirement Age.

(h)       “Benefit Period”means the period of 144 months following Executive’s Benefit Commencement Date.

(i) “Board of Directors” means the Board of Directors of the Company.

(j)        “Cause” means Executive’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(k) “Change in Control” has the meaning set forth in Section 3(g) hereof.

(l) “Claimant” has the meaning set forth in Section 14(a) hereof.

(m)      “Claims Administrator” has the meaning set forth in Section 14(a) hereof.

(n)       “Code” means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(o) “Company” means VCA Antech, Inc., a Delaware Corporation.

(p)       “Disability” means (i) the inability of Executive to perform any substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months, as determined by the reasonable judgment of a physician selected by Executive (or Executive’s legal guardian if Executive is incapacitated) and reasonably acceptable to the Company, (ii) if the Executive is by reason of any medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months receiving income replacement benefits for a period of not less than three

 

2 Execution Copy

months under an accident and health plan covering employees of the Company, or (iii) Executive is determined to be totally disabled by the Social Security Administration.

(q)       “Effective Date” means the date of adoption of this Program by the Board of Directors specified in the first paragraph hereof.

(r)        “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(s)       “Employment Agreement”means that certain employment contract by and between Executive and Company, as amended from time to time.

(t)        “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Reference to a specific provision of the Exchange Act shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(u)       “Executive” means the Executive designated in the introductory paragraph of this Program.

(v)       “Final Salary” means the amount that is the greater of: (i) Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) payable immediately prior to Executive’s Benefit Commencement Date, or (ii) the average of Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) for the three highest years during the ten year period ending on the December 31^st immediately preceding Executive’s Benefit Commencement Date.

(w)      “Good Reason” means the Executive’s termination of employment upon written notice of termination delivered by Executive to the Company within two years following the initial existence of one or more of the following conditions without Executive’s consent:

1.         The breach by Company of any of the material obligations of the Company to Executive under this Agreement or under any employment or consulting agreement between Executive and the Company, or

2.         The relocation of the office where Executive is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Executive must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company shall have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Executive will not be entitled to terminate employment for Good Reason.

 

3 Execution Copy

(x)          “Named Fiduciary” means the person, entity or Committee designated by the Board of Directors to hear appeals of a denied claim for benefits under the Program. Unless otherwise designated by the Board of Directors, the Named Fiduciary will be the Compensation Committee of the Board of Directors.

(y) “Normal Retirement Age” means the attainment of age 67.

(z) “Program” means this Supplemental Executive Retirement Program.

(aa)         “Separation from Service” means the termination of the Participant’s employment with the Company and all affiliated companies so as to constitute a separation from service under Section 1.409A-1(h)(1) of the Treasury Regulations. Solely for purposes of determining whether a Separation from Service has occurred, “affiliated company” is defined as (i) any corporation that is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) with the Company, or (ii) a trade or business under common control (as defined in Section 414(c) of the Code) with the Company, provided that in applying Section 1503(a) of the Code for purposes of determining a controlled group of corporations under Code Section 414(b), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1503(a), and in applying Section 1.414(c)-2 of the Treasury Regulations for purposes of determining a trade or business under common control under Code Section 414(c), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1.414(c)-2.

(bb)     “Supplemental Retirement Benefit” means the benefit payable in accordance with the provisions of Section 3, hereof.

3. Supplemental Retirement Benefit.

(a)       Upon the Benefit Commencement Date, Executive shall receive a Supplemental Retirement Benefit under this Section 3. Except as provided in Section 3(f) hereof, Executive’s Supplemental Retirement Benefit shall consist of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the amount determined in Section 3(b) hereof. Such Supplemental Retirement Benefit shall be fully vested and nonforfeitable.

(b)       The Supplemental Retirement Benefit will be paid in 144 monthly benefit payments beginning on the Benefit Commencement Date in an amount equal to one-twelfth of the Accrued Benefit Percentage determined under the table in Section 3(c) hereof multiplied by the Final Salary for the Benefit Period.

(c)       The Accrued Benefit Percentage shall be a percentage of Final Salary as of each Anniversary Date within the Accrual Period for which Executive continues to be employed by the Company without experiencing a Separation from Service, as specified below:

 

4 Execution Copy

Employment Anniversary Date	Accrued Benefit Percentage
Effective Date	20%
December 31, 2010	30%
December 31, 2011	40%
December 31, 2012	50%

Notwithstanding anything to the contrary in the above schedule, in the event that prior to or coincident with Executive’s Separation from Service there occurs any of the following:

1. a Change in Control;

2. an involuntary termination by the Company without Cause;

3. a voluntary termination by Executive for Good Reason;

4. Executive’s death; or

5. Executive’s Disability;

the Accrued Benefit Percentage will be 50%, calculated as if Executive continued to be employed through the end of the Accrual Period.

(d)       The payments and benefits under this Program constitute nonqualified deferred compensation subject to the application of Section 409A of the Code. The payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Program shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Program to the contrary, the Company may adopt such amendments to this Program or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Program from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Executive otherwise would be entitled to under this Program without the written consent of Executive. Executive shall not, directly or indirectly, designate the taxable year of a payment made under this Program. Any right to a series of installment payments pursuant to this Program is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4), or within the involuntary separation pay limit under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) shall be treated as a separate payment. Payment dates provided for in this Program shall be deemed to incorporate “grace periods” within the meaning of Section 409A of the Code.

(e)       In addition, notwithstanding anything to the contrary in this Program, no Supplemental Retirement Benefit, shall be paid to Executive during the 6-month period following Executive’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Program would be a prohibited distribution under

 

5 Execution Copy

Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Executive’s death), the Company shall pay Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period.

(f)        Acceleration of Payments. Notwithstanding anything herein to the contrary, upon the occurrence of (i) a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), (ii) the Executive’s death or (iii) the Executive’s Disability, any of which occurs prior to the Benefit Commencement Date, the Company will pay to Executive in a lump sum on the date of the Change in Control, death or Disability, the Actuarial Equivalent of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the Supplemental Retirement Benefit that would be payable to Executive on the Benefit Commencement Date had a Change of Control, death or Disability not occurred, calculated as if Executive continued to be employed through the end of the Accrual Period. In addition, upon the occurrence of a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), which occurs after the Benefit Commencement Date, this Agreement will terminate and the Actuarial Equivalent of any remaining monthly benefit payments will be paid in a lump sum on the date of the Change in Control.

(g)       Change in Control Definition. For purposes of this Section, a “Change in Control” of the Company shall be deemed to have occurred if (i) 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 (ii) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or (iii) any person shall become the beneficial owner of 25% or more of the Company’s outstanding common stock; or (iv) 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.

4.         Prohibition on Assignments. No part of the Supplemental Retirement Benefit shall be liable for the debts, contracts or engagements of Executive or his successors in interest, or be taken in execution by levy, attachment or garnishment or by any other legal or equitable proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge,

 

6 Execution Copy

encumber or assign any Supplemental Retirement Benefit or any interest therein in any manner whatsoever.

5.         Unfunded Obligations of Company. The obligations of Company under the Program shall be unfunded and unsecured, and nothing contained herein shall be construed as providing for assets to be held in trust or escrow or any other form of segregation of the assets of Company for the benefit of Executive or any other person. The interest of Executive or any other person hereunder shall be limited to the right to receive the Supplemental Retirement Benefit as set forth herein. To the extent that Executive or any other person acquires a right to receive any benefit under the Program, such right shall be no greater than the right of an unsecured general creditor of Company. For tax purposes and for purposes of Title I of ERISA, this Program is intended to qualify as an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, and shall be interpreted accordingly. No action by the Company, its Board of Directors, or the Claims Administrator under this Program shall be construed as creating a trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind in favor of any Participant or Beneficiary or any other persons otherwise entitled to benefits under the Program. The status of the Participant and any Beneficiary with respect to any liabilities assumed by the Company hereunder shall be solely that of unsecured creditors of the Company. The Program constitutes a mere promise by the Company to make benefit payments in the future. Any insurance policy or any other asset acquired or held by the Company in connection with liabilities assumed by it hereunder, shall not be deemed to be held under any trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind for the benefit of a Participant or Beneficiary or to be security for the performance of the obligations of the Company, but shall be, and remain a general, unpledged, unrestricted asset of the Company at all times subject to the claims of general creditors of the Company. Inclusive of the foregoing, the Company may transfer assets, including any informal funding vehicles, to a grantor trust of the type known as a “Rabbi Trust” with the Company as grantor and owner of such trust.

6.         Administrative Provisions. Company shall be the administrator of the Program and shall administer the Program in accordance with the terms of the Program and ERISA.

(a)       Company shall have the discretion, power and authority: (i) to engage actuaries, attorneys, accountants, or other firms or persons and to rely upon the reports or advice of such persons except as otherwise required by law and (ii) to delegate any duty, power or responsibility to any firm or other person engaged under clause (i) or to any other person or persons.

(b)       This Program shall be administered, interpreted and applied fairly and equitably by the Company in its discretion and in accordance with the specified purposes of this Program. All discretionary determinations by Company shall be binding upon all parties, to the maximum extent permitted by law. Company shall be the named fiduciary of this Program.

7.         Successors and Assigns. This Program shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Executive may not assign Executive rights or delegate Executive’s duties under this Program either in whole or in

 

7 Execution Copy

part without the prior written consent of Company. Any attempted assignment or delegation without such consent will be void.

8.         Headings. Any headings of sections of this Program are solely for the convenience of the parties hereto and are not part of this Program, nor are they to be used in its interpretation.

9.         Counterparts. This Program may be executed and delivered by facsimile, and in several counterparts; each such counterpart shall be considered as an original Program and all such executed counterparts shall constitute one Program.

10.       Notice. Any notice, request, instruction, or other document required to be given under this Program by either party to the other shall be in writing and delivered in person or by courier, or mailed by certified mail, postage prepaid, return receipt requested, to the address specified below, or to such other address as the party specifies in writing. Such notice, if in person or by courier, will be effective when delivered, and, if by mail, will be effective upon its mailing as specified:

If to Company:	If to Executive:
VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701 Attn: Chief Executive Officer	Arthur J. Antin c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701

Executive shall be responsible for furnishing his current address, and the current name and address of his Beneficiary (as defined below).

11.       Entire Program. This Program sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Program, nor any waiver of any rights under this Program, shall be effective unless in writing signed by the party to be charged. The failure by either party to enforce any rights hereunder shall not be construed as a waiver of any rights of such party.

12.       Severability. If any provision of this Program shall be held or deemed to be invalid, inoperative or unenforceable, such circumstances shall not affect the validity of any other provision of this Program.

13.       Payment in the Case of Executive’s Death. In the event of the death of Executive, payments under this Program shall be made to the person designated as the Beneficiary in writing to the Company. Consent of Executive’s spouse is required for designation of a Beneficiary other than Executive’s spouse.

14. Application for Benefits.

 

8 Execution Copy

(a)       Claim for Benefits. If Executive, Executive’s surviving spouse or Beneficiary, as the case may be (the “Claimant”) does not receive timely payment of any benefits which Claimant believes are due and payable under this Program, Claimant may file a claim for Supplemental Retirement Benefit under this Program by notifying the Company in writing, together with such other documents and information as Company may require. Within 90 days following receipt of the claim and all necessary documents and information, Company’s authorized delegate reviewing the claim (the “Claims Administrator”) shall furnish the Claimant with written notice of the decision rendered with respect to the claim. The Claims Administrator shall be designated by the Company’s Board of Directors. The Board of Directors reserves the right to change the Claims Administrator from time to time. Should special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the expiration of the initial 90 day period. The notice shall indicate the special circumstances requiring an extension of time and the date by which a final decision is expected to be rendered. In no event shall the period of the extension exceed ninety (90) days from the end of the initial 90 day period.

(b)       Content of Denial. In the case of a complete or partial denial of the Claimant’s claim, a notice written in a manner calculated to be understood by Claimant shall set forth the specific reasons for the denial, references to the Program provisions upon which the denial is based, a description of any additional information or material necessary for the Claimant to perfect the benefit claim (together with an explanation of why the material or information is necessary), and an explanation of the Program’s claims appeal procedure.

(c)       Appeals. In order to appeal the decision rendered in connection with the denial of a claim for benefits or with respect to the amount of benefits under this Program, the Claimant must follow the appeal procedures set forth in this Section 14(c). The appeal must be made in writing in the case where the claim is expressly rejected, within 60 days after the date of receipt of the notice of the decision with respect to the claim, or in the case where the claim has neither been approved or denied within the applicable period provided in Section 14(a) above, within 60 days after the expiration of the period. The Claimant may request that his or her application be given full and fair review by the Named Fiduciary designated by the Board of Directors. The Named Fiduciary shall not be the Claims Administrator nor subordinate to the Claims Administrator. The Board of Directors reserves the right to change the Named Fiduciary from time to time, and to designate a special Named Fiduciary for appeals when deemed necessary. The Claimant may review all pertinent documents and submit issues and comments in writing in connection with the appeal. The decision of the Named Fiduciary shall be made promptly, and not later than 60 days after Company’s receipt of a request for review, unless special circumstances (such as the need to hold a hearing) require an extension of time for processing. In such a case, a decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If such an extension of time is required, written notice of the extension and the special circumstances shall be given to the Claimant prior to the expiration of the initial 60 day period. The decision on review shall be in writing and shall include specific reasons for the decision, written in a manner designed to be understood by the Claimant, with specific references to the pertinent Program provisions upon which the decision is based.

 

9 Execution Copy

(d)       Exhaustion of Remedies. No legal action for benefits under the Plan may be brought unless and until the Claimant has exhausted his remedies under this Section 14.

(e)       Withholding. Payments made pursuant to this Program constitute compensation, and the Company shall have the right to deduct from all such payments an amount sufficient to satisfy any federal, state and/or local tax withholding requirements, including without limitation any employment tax withholding required pursuant to Code Section 3121(v) and not previously withheld.

[Remainder of this page is intentionally blank – signature page follows]

 

10 Execution Copy

IN WITNESS WHEREOF, the parties have executed this Program as of the date set forth below.

COMPANY: VCA ANTECH, INC.	EXECUTIVE:
By:      /s/ Robert L. Antin Title:   Chairman of the Board, President and             Chief Executive OfficerDate:   June 30, 2010	By:      /s/ Arthur J. Antin     Arthur J. Antin, an individual Date:  June 30, 2010

 

11 Execution Copy

EX-10

SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM

THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM (this “Program”) is made and entered into effective as of June 28, 2010 (“Effective Date”), by and between VCA Antech, Inc., a Delaware Corporation (“Company”), and Neil Tauber, an individual (“Executive”).

RECITALS

WHEREAS, Company desires to establish a Supplemental Executive Retirement Program to provide retirement income benefits to Executive; and

WHEREAS, this Program is a nonqualified supplemental retirement plan, and is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

PROGRAM

1. Program. Company hereby establishes this Program for the benefit of Executive.

2. Definitions.

(a)       “Accrued Benefit Percentage”means the percentage of Final Salary specified in Section 3(c) earned as of each Anniversary Date during the Accrual Period.

(b)       “Accrual Period” means the period beginning January 1, 2010 through December 31, 2014.

(c)       “Actuarial Equivalent” means a benefit of equivalent value when computed on the basis of a present value discount rate equal to four percent (4%) per annum.

(d)        “Anniversary Date” means December 31 of each year, except as otherwise specified in Section 3(c).

(e)        “Base Salary” means the Executive’s regular recurring base compensation paid in cash by the Company for personal services actually rendered in the course of employment with the Company, including salary deferrals pursuant to any salary reduction agreement under Section 125 or 401(k) of the Code that are not currently includible in the Executive’s gross income, but excluding bonuses, reimbursements and other expense allowances, Company contributions to any Company profit-sharing plan and amounts credited

Execution Copy

under any other qualified or non-qualified plan of deferred compensation, other than salary deferrals pursuant to a salary reduction agreement under Section 401(k) of the Code.

(f)        “Beneficiary” means the person, persons or entity designated by the Executive to receive benefits in the event of the Executive’s death. In the absence of any effective designation, the Executive’s Beneficiary shall be the Executive’s surviving legal spouse. If such spouse dies before receiving payment to which he or she is entitled hereunder, then payment shall be made to such person or persons, including his estate, as he or she may designate in the last Beneficiary designation received by the Plan Administrator from such spouse prior to his death. If the Executive is not survived by a legal spouse, or if such spouse shall fail to so designate, the said payment shall be made to the then living children of the Participant, if any, in equal shares. If there are no surviving children, the payment will be made to the estate of the later to die of the Executive and (if any) his legal spouse.

(g)       “Benefit Commencement Date” means the first day of the calendar month next following the Executive’s attainment of Normal Retirement Age.

(h)       “Benefit Period”means the period of 144 months following Executive’s Benefit Commencement Date.

(i) “Board of Directors” means the Board of Directors of the Company.

(j)         “Cause” means Executive’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(k) “Change in Control” has the meaning set forth in Section 3(f) hereof.

(l) “Claimant” has the meaning set forth in Section 14(a) hereof.

(m)       “Claims Administrator” has the meaning set forth in Section 14(a) hereof.

(n)       “Code” means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(o) “Company” means VCA Antech, Inc., a Delaware Corporation.

(p)       “Disability” means (i) the inability of Executive to perform any substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months, as determined by the reasonable judgment of a physician selected by Executive (or Executive’s legal guardian if Executive is incapacitated) and reasonably acceptable to the Company, (ii) if the Executive is by reason of any medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months receiving income replacement benefits for a period of not less than three

 

2 Execution Copy

months under an accident and health plan covering employees of the Company, or (iii) Executive is determined to be totally disabled by the Social Security Administration.

(q)       “Effective Date” means the date of adoption of this Program by the Board of Directors specified in the first paragraph hereof.

(r)        “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(s)       “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Reference to a specific provision of the Exchange Act shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(t)        “Executive” means the Executive designated in the introductory paragraph of this Program.

(u)       “Final Salary” means the amount that is the greater of: (i) Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) payable immediately prior to Executive’s Benefit Commencement Date, or (ii) the average of Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) for the three highest years during the ten year period ending on the December 31^st immediately preceding Executive’s Benefit Commencement Date.

(v)       “Good Reason” means the Executive’s termination of employment upon written notice of termination delivered by Executive to the Company within two years following the initial existence of one or more of the following conditions without Executive’s consent:

1.         The breach by Company of any of the material obligations of the Company to Executive under this Agreement or under any employment or consulting agreement between Executive and the Company, or

2.         The relocation of the office where Executive is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Executive must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company shall have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Executive will not be entitled to terminate employment for Good Reason.

(w)       “Named Fiduciary” means the person, entity or Committee designated by the Board of Directors to hear appeals of a denied claim for benefits under the Program. Unless

 

3 Execution Copy

otherwise designated by the Board of Directors, the Named Fiduciary will be the Compensation Committee of the Board of Directors.

(x) “Normal Retirement Age” means the attainment of age 66.

(y) “Program” means this Supplemental Executive Retirement Program.

(z)           “Separation from Service” means the termination of the Participant’s employment with the Company and all affiliated companies so as to constitute a separation from service under Section 1.409A-1(h)(1) of the Treasury Regulations. Solely for purposes of determining whether a Separation from Service has occurred, “affiliated company” is defined as (i) any corporation that is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) with the Company, or (ii) a trade or business under common control (as defined in Section 414(c) of the Code) with the Company, provided that in applying Section 1503(a) of the Code for purposes of determining a controlled group of corporations under Code Section 414(b), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1503(a), and in applying Section 1.414(c)-2 of the Treasury Regulations for purposes of determining a trade or business under common control under Code Section 414(c), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1.414(c)-2.

(aa)        “Supplemental Retirement Benefit” means the benefit payable in accordance with the provisions of Section 3, hereof.

3. Supplemental Retirement Benefit.

(a)       Upon the Benefit Commencement Date, Executive shall receive a Supplemental Retirement Benefit under this Section 3. Except as provided in Section 3(f) hereof, Executive’s Supplemental Retirement Benefit shall consist of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the amount determined in Section 3(b) hereof. Such Supplemental Retirement Benefit shall be fully vested and nonforfeitable.

(b)       The Supplemental Retirement Benefit will be paid in 144 monthly benefit payments beginning on the Benefit Commencement Date in an amount equal to one-twelfth of the Accrued Benefit Percentage determined under the table in Section 3(c) hereof multiplied by the Final Salary for the Benefit Period.

(c)       The Accrued Benefit Percentage shall be a percentage of Final Salary as of each Anniversary Date within the Accrual Period for which Executive continues to be employed by the Company without experiencing a Separation from Service, as specified below:

 

4 Execution Copy

Employment Anniversary Date	Accrued Benefit Percentage
December 31, 2010	10%
December 31, 2011	20%
December 31, 2012	30%
December 31, 2013	40%
December 31, 2014	50%

Notwithstanding anything to the contrary in the above schedule, in the event that prior to or coincident with Executive’s Separation from Service there occurs any of the following:

1. a Change in Control;

2. an involuntary termination by the Company without Cause;

3. a voluntary termination by Executive for Good Reason;

4. Executive’s death; or

5. Executive’s Disability;

the Accrued Benefit Percentage will be 50%, calculated as if Executive continued to be employed through the end of the Accrual Period.

(d)       The payments and benefits under this Program constitute nonqualified deferred compensation subject to the application of Section 409A of the Code. The payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Program shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Program to the contrary, the Company may adopt such amendments to this Program or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Program from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Executive otherwise would be entitled to under this Program without the written consent of Executive. Executive shall not, directly or indirectly, designate the taxable year of a payment made under this Program. Any right to a series of installment payments pursuant to this Program is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4), or within the involuntary separation pay limit under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) shall be treated as a separate payment. Payment dates provided for in this Program shall be deemed to incorporate “grace periods” within the meaning of Section 409A of the Code.

(e)       In addition, notwithstanding anything to the contrary in this Program, no Supplemental Retirement Benefit, shall be paid to Executive during the 6-month period following Executive’s Separation from Service if the Company determines that paying such

 

5 Execution Copy

amounts at the time or times indicated in this Program would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Executive’s death), the Company shall pay Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period.

(f)        Acceleration of Payments. Notwithstanding anything herein to the contrary, upon the occurrence of (i) a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), (ii) the Executive’s death or (iii) the Executive’s Disability, any of which occurs prior to the Benefit Commencement Date, the Company will pay to Executive in a lump sum on the date of the Change in Control, death or Disability, the Actuarial Equivalent of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the Supplemental Retirement Benefit that would be payable to Executive on the Benefit Commencement Date had a Change of Control, death or Disability not occurred, calculated as if Executive continued to be employed through the end of the Accrual Period. In addition, upon the occurrence of a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), which occurs after the Benefit Commencement Date, this Agreement will terminate and the Actuarial Equivalent of any remaining monthly benefit payments will be paid in a lump sum on the date of the Change in Control.

(g)       Change in Control Definition. For purposes of this Section, a “Change in Control” of the Company shall be deemed to have occurred if (i) 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 (ii) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or (iii) any person shall become the beneficial owner of 25% or more of the Company’s outstanding common stock; or (iv) 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.

4.         Prohibition on Assignments. No part of the Supplemental Retirement Benefit shall be liable for the debts, contracts or engagements of Executive or his successors in interest, or be taken in execution by levy, attachment or garnishment or by any other legal or equitable

 

6 Execution Copy

proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge, encumber or assign any Supplemental Retirement Benefit or any interest therein in any manner whatsoever.

5.         Unfunded Obligations of Company. The obligations of Company under the Program shall be unfunded and unsecured, and nothing contained herein shall be construed as providing for assets to be held in trust or escrow or any other form of segregation of the assets of Company for the benefit of Executive or any other person. The interest of Executive or any other person hereunder shall be limited to the right to receive the Supplemental Retirement Benefit as set forth herein. To the extent that Executive or any other person acquires a right to receive any benefit under the Program, such right shall be no greater than the right of an unsecured general creditor of Company. For tax purposes and for purposes of Title I of ERISA, this Program is intended to qualify as an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, and shall be interpreted accordingly. No action by the Company, its Board of Directors, or the Claims Administrator under this Program shall be construed as creating a trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind in favor of any Participant or Beneficiary or any other persons otherwise entitled to benefits under the Program. The status of the Participant and any Beneficiary with respect to any liabilities assumed by the Company hereunder shall be solely that of unsecured creditors of the Company. The Program constitutes a mere promise by the Company to make benefit payments in the future. Any insurance policy or any other asset acquired or held by the Company in connection with liabilities assumed by it hereunder, shall not be deemed to be held under any trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind for the benefit of a Participant or Beneficiary or to be security for the performance of the obligations of the Company, but shall be, and remain a general, unpledged, unrestricted asset of the Company at all times subject to the claims of general creditors of the Company. Inclusive of the foregoing, the Company may transfer assets, including any informal funding vehicles, to a grantor trust of the type known as a “Rabbi Trust” with the Company as grantor and owner of such trust.

6.         Administrative Provisions. Company shall be the administrator of the Program and shall administer the Program in accordance with the terms of the Program and ERISA.

(a)       Company shall have the discretion, power and authority: (i) to engage actuaries, attorneys, accountants, or other firms or persons and to rely upon the reports or advice of such persons except as otherwise required by law and (ii) to delegate any duty, power or responsibility to any firm or other person engaged under clause (i) or to any other person or persons.

(b)       This Program shall be administered, interpreted and applied fairly and equitably by the Company in its discretion and in accordance with the specified purposes of this Program. All discretionary determinations by Company shall be binding upon all parties, to the maximum extent permitted by law. Company shall be the named fiduciary of this Program.

7.         Successors and Assigns. This Program shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Executive may not assign Executive rights or delegate Executive’s duties under this Program either in whole or in

 

7 Execution Copy

part without the prior written consent of Company. Any attempted assignment or delegation without such consent will be void.

8.         Headings. Any headings of sections of this Program are solely for the convenience of the parties hereto and are not part of this Program, nor are they to be used in its interpretation.

9.         Counterparts. This Program may be executed and delivered by facsimile, and in several counterparts; each such counterpart shall be considered as an original Program and all such executed counterparts shall constitute one Program.

10.       Notice. Any notice, request, instruction, or other document required to be given under this Program by either party to the other shall be in writing and delivered in person or by courier, or mailed by certified mail, postage prepaid, return receipt requested, to the address specified below, or to such other address as the party specifies in writing. Such notice, if in person or by courier, will be effective when delivered, and, if by mail, will be effective upon its mailing as specified:

If to Company:	If to Executive:
VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701 Attn: Chief Executive Officer	Neil Tauber c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701

Executive shall be responsible for furnishing his current address, and the current name and address of his Beneficiary (as defined below).

11.       Entire Program. This Program sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Program, nor any waiver of any rights under this Program, shall be effective unless in writing signed by the party to be charged. The failure by either party to enforce any rights hereunder shall not be construed as a waiver of any rights of such party.

12.       Severability. If any provision of this Program shall be held or deemed to be invalid, inoperative or unenforceable, such circumstances shall not affect the validity of any other provision of this Program.

13.       Payment in the Case of Executive’s Death. In the event of the death of Executive, payments under this Program shall be made to the person designated as the Beneficiary in writing to the Company. Consent of Executive’s spouse is required for designation of a Beneficiary other than Executive’s spouse.

14. Application for Benefits.

 

8 Execution Copy

(a)       Claim for Benefits. If Executive, Executive’s surviving spouse or Beneficiary, as the case may be (the “Claimant”) does not receive timely payment of any benefits which Claimant believes are due and payable under this Program, Claimant may file a claim for Supplemental Retirement Benefit under this Program by notifying the Company in writing, together with such other documents and information as Company may require. Within 90 days following receipt of the claim and all necessary documents and information, Company’s authorized delegate reviewing the claim (the “Claims Administrator”) shall furnish the Claimant with written notice of the decision rendered with respect to the claim. The Claims Administrator shall be designated by the Company’s Board of Directors. The Board of Directors reserves the right to change the Claims Administrator from time to time. Should special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the expiration of the initial 90 day period. The notice shall indicate the special circumstances requiring an extension of time and the date by which a final decision is expected to be rendered. In no event shall the period of the extension exceed ninety (90) days from the end of the initial 90 day period.

(b)       Content of Denial. In the case of a complete or partial denial of the Claimant’s claim, a notice written in a manner calculated to be understood by Claimant shall set forth the specific reasons for the denial, references to the Program provisions upon which the denial is based, a description of any additional information or material necessary for the Claimant to perfect the benefit claim (together with an explanation of why the material or information is necessary), and an explanation of the Program’s claims appeal procedure.

(c)       Appeals. In order to appeal the decision rendered in connection with the denial of a claim for benefits or with respect to the amount of benefits under this Program, the Claimant must follow the appeal procedures set forth in this Section 14(c). The appeal must be made in writing in the case where the claim is expressly rejected, within 60 days after the date of receipt of the notice of the decision with respect to the claim, or in the case where the claim has neither been approved or denied within the applicable period provided in Section 14(a) above, within 60 days after the expiration of the period. The Claimant may request that his or her application be given full and fair review by the Named Fiduciary designated by the Board of Directors. The Named Fiduciary shall not be the Claims Administrator nor subordinate to the Claims Administrator. The Board of Directors reserves the right to change the Named Fiduciary from time to time, and to designate a special Named Fiduciary for appeals when deemed necessary. The Claimant may review all pertinent documents and submit issues and comments in writing in connection with the appeal. The decision of the Named Fiduciary shall be made promptly, and not later than 60 days after Company’s receipt of a request for review, unless special circumstances (such as the need to hold a hearing) require an extension of time for processing. In such a case, a decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If such an extension of time is required, written notice of the extension and the special circumstances shall be given to the Claimant prior to the expiration of the initial 60 day period. The decision on review shall be in writing and shall include specific reasons for the decision, written in a manner designed to be understood by the Claimant, with specific references to the pertinent Program provisions upon which the decision is based.

 

9 Execution Copy

(d)       Exhaustion of Remedies. No legal action for benefits under the Plan may be brought unless and until the Claimant has exhausted his remedies under this Section 14.

(e)       Withholding. Payments made pursuant to this Program constitute compensation, and the Company shall have the right to deduct from all such payments an amount sufficient to satisfy any federal, state and/or local tax withholding requirements, including without limitation any employment tax withholding required pursuant to Code Section 3121(v) and not previously withheld.

[Remainder of this page is intentionally blank – signature page follows]

 

10 Execution Copy

IN WITNESS WHEREOF, the parties have executed this Program as of the date set forth below.

COMPANY: VCA ANTECH, INC.	EXECUTIVE:
By:      /s/ Robert L. Antin Title:   Chairman of the Board, President and             Chief Executive Officer Date:   June 30, 2010	By:      /s/ Neil Tauber     Neil Tauber, an individual Date:  June 30, 2010

 

11 Execution Copy

EX-10

SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM

THIS SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM (this “Program”) is made and entered into effective as of June 28, 2010 (“Effective Date”), by and between VCA Antech, Inc., a Delaware Corporation (“Company”), and Tomas W. Fuller, an individual (“Executive”).

RECITALS

WHEREAS, Company desires to establish a Supplemental Executive Retirement Program to provide retirement income benefits to Executive; and

WHEREAS, this Program is a nonqualified supplemental retirement plan, and is unfunded and is maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

PROGRAM

1. Program. Company hereby establishes this Program for the benefit of Executive.

2. Definitions.

(a)       “Accrued Benefit Percentage”means the percentage of Final Salary specified in Section 3(c) earned as of each Anniversary Date during the Accrual Period.

(b)       “Accrual Period” means the period beginning January 1, 2010 through December 31, 2014.

(c)       “Actuarial Equivalent” means a benefit of equivalent value when computed on the basis of a present value discount rate equal to four percent (4%) per annum.

(d)       “Anniversary Date” means December 31 of each year, except as otherwise specified in Section 3(c).

(e)       “Base Salary” means the Executive’s regular recurring base compensation paid in cash by the Company pursuant to the terms of the Employment Agreement for personal services actually rendered in the course of employment with the Company, including salary deferrals pursuant to any salary reduction agreement under Section 125 or 401(k) of the Code that are not currently includible in the Executive’s gross income, but excluding bonuses, reimbursements and other expense allowances, Company contributions to any Company profit-sharing plan and amounts credited under any other qualified or non-qualified plan of deferred

Execution Copy

compensation, other than salary deferrals pursuant to a salary reduction agreement under Section 401(k) of the Code.

(f)        “Beneficiary” means the person, persons or entity designated by the Executive to receive benefits in the event of the Executive’s death. In the absence of any effective designation, the Executive’s Beneficiary shall be the Executive’s surviving legal spouse. If such spouse dies before receiving payment to which he or she is entitled hereunder, then payment shall be made to such person or persons, including his estate, as he or she may designate in the last Beneficiary designation received by the Plan Administrator from such spouse prior to his death. If the Executive is not survived by a legal spouse, or if such spouse shall fail to so designate, the said payment shall be made to the then living children of the Participant, if any, in equal shares. If there are no surviving children, the payment will be made to the estate of the later to die of the Executive and (if any) his legal spouse.

(g)       “Benefit Commencement Date” means the first day of the calendar month next following the Executive’s attainment of Normal Retirement Age.

(h)       “Benefit Period”means the period of 144 months following Executive’s Benefit Commencement Date.

(i) “Board of Directors” means the Board of Directors of the Company.

(j)         “Cause” means Executive’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(k) “Change in Control” has the meaning set forth in Section 3(f) hereof.

(l) “Claimant” has the meaning set forth in Section 14(a) hereof.

(m)       “Claims Administrator” has the meaning set forth in Section 14(a) hereof.

(n)        “Code” means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(o) “Company” means VCA Antech, Inc., a Delaware Corporation.

(p)        “Disability” means (i) the inability of Executive to perform any substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months, as determined by the reasonable judgment of a physician selected by Executive (or Executive’s legal guardian if Executive is incapacitated) and reasonably acceptable to the Company, (ii) if the Executive is by reason of any medically determinable physical or mental impairment that can be expected to result in death or to last for a continuous period of not less than twelve months receiving income replacement benefits for a period of not less than three

 

2 Execution Copy

months under an accident and health plan covering employees of the Company, or (iii) Executive is determined to be totally disabled by the Social Security Administration.

(q)       “Effective Date” means the date of adoption of this Program by the Board of Directors specified in the first paragraph hereof.

(r)        “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(s)       “Employment Agreement”means that certain employment contract by and between Executive and Company, as amended from time to time.

(t)        “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Reference to a specific provision of the Exchange Act shall include such provision, any valid regulation or ruling promulgated thereunder and any comparable provision of future law that amends, supplements or supersedes such provision.

(u)       “Executive” means the Executive designated in the introductory paragraph of this Program.

(v)       “Final Salary” means the amount that is the greater of: (i) Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) payable immediately prior to Executive’s Benefit Commencement Date, or (ii) the average of Executive’s annual Base Salary (before adjustments for elective deferrals or contributions to Company employee benefit plans) for the three highest years during the ten year period ending on the December 31^st immediately preceding Executive’s Benefit Commencement Date.

(w)      “Good Reason” means the Executive’s termination of employment upon written notice of termination delivered by Executive to the Company within two years following the initial existence of one or more of the following conditions without Executive’s consent:

1.         The breach by Company of any of the material obligations of the Company to Executive under this Agreement or under any employment or consulting agreement between Executive and the Company, or

2.         The relocation of the office where Executive is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Executive must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company shall have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Executive will not be entitled to terminate employment for Good Reason.

 

3 Execution Copy

(x)       “Named Fiduciary” means the person, entity or Committee designated by the Board of Directors to hear appeals of a denied claim for benefits under the Program. Unless otherwise designated by the Board of Directors, the Named Fiduciary will be the Compensation Committee of the Board of Directors.

(y) “Normal Retirement Age” means the attainment of age 62.

(z) “Program” means this Supplemental Executive Retirement Program.

(aa)     “Separation from Service” means the termination of the Participant’s employment with the Company and all affiliated companies so as to constitute a separation from service under Section 1.409A-1(h)(1) of the Treasury Regulations. Solely for purposes of determining whether a Separation from Service has occurred, “affiliated company” is defined as (i) any corporation that is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) with the Company, or (ii) a trade or business under common control (as defined in Section 414(c) of the Code) with the Company, provided that in applying Section 1503(a) of the Code for purposes of determining a controlled group of corporations under Code Section 414(b), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1503(a), and in applying Section 1.414(c)-2 of the Treasury Regulations for purposes of determining a trade or business under common control under Code Section 414(c), the language “at least 50%” is used instead of “at least 80%” each place it appears in Section 1.414(c)-2.

(bb)     “Supplemental Retirement Benefit” means the benefit payable in accordance with the provisions of Section 3, hereof.

                   3.          Supplemental Retirement Benefit.

(a)       Upon the Benefit Commencement Date, Executive shall receive a Supplemental Retirement Benefit under this Section 3. Except as provided in Section 3(f) hereof, Executive’s Supplemental Retirement Benefit shall consist of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the amount determined in Section 3(b) hereof. Such Supplemental Retirement Benefit shall be fully vested and nonforfeitable.

(b)       The Supplemental Retirement Benefit will be paid in 144 monthly benefit payments beginning on the Benefit Commencement Date in an amount equal to one-twelfth of the Accrued Benefit Percentage determined under the table in Section 3(c) hereof multiplied by the Final Salary for the Benefit Period.

(c)       The Accrued Benefit Percentage shall be a percentage of Final Salary as of each Anniversary Date within the Accrual Period for which Executive continues to be employed by the Company without experiencing a Separation from Service, as specified below:

 

4 Execution Copy

Employment Anniversary Date	Accrued Benefit Percentage
December 31, 2010	10%
December 31, 2011	20%
December 31, 2012	30%
December 31, 2013	40%
December 31, 2014	50%

Notwithstanding anything to the contrary in the above schedule, in the event that prior to or coincident with Executive’s Separation from Service there occurs any of the following:

1. a Change in Control;

2. an involuntary termination by the Company without Cause;

3. a voluntary termination by Executive for Good Reason;

4. Executive’s death; or

5. Executive’s Disability;

the Accrued Benefit Percentage will be 50%, calculated as if Executive continued to be employed through the end of the Accrual Period.

(d)       The payments and benefits under this Program constitute nonqualified deferred compensation subject to the application of Section 409A of the Code. The payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Program shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Program to the contrary, the Company may adopt such amendments to this Program or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (i) exempt the compensation and benefits payable under this Program from Section 409A of the Code and/or preserve the intended tax treatment of such compensation and benefits, or (ii) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Executive otherwise would be entitled to under this Program without the written consent of Executive. Executive shall not, directly or indirectly, designate the taxable year of a payment made under this Program. Any right to a series of installment payments pursuant to this Program is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4), or within the involuntary separation pay limit under Treasury Regulation Section 1.409A-1(b)(9)(iii)(A) shall be treated as a separate payment. Payment dates provided for in this Program shall be deemed to incorporate “grace periods” within the meaning of Section 409A of the Code.

(e)       In addition, notwithstanding anything to the contrary in this Program, no Supplemental Retirement Benefit, shall be paid to Executive during the 6-month period following Executive’s Separation from Service if the Company determines that paying such

 

5 Execution Copy

amounts at the time or times indicated in this Program would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Executive’s death), the Company shall pay Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such period.

(f)        Acceleration of Payments. Notwithstanding anything herein to the contrary, upon the occurrence of (i) a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), (ii) the Executive’s death or (iii) the Executive’s Disability, any of which occurs prior to the Benefit Commencement Date, the Company will pay to Executive in a lump sum on the date of the Change in Control, death or Disability, the Actuarial Equivalent of 144 monthly benefit payments, commencing on the Benefit Commencement Date, equal to the Supplemental Retirement Benefit that would be payable to Executive on the Benefit Commencement Date had a Change of Control, death or Disability not occurred, calculated as if Executive continued to be employed through the end of the Accrual Period. In addition, upon the occurrence of a Change in Control of the Company that is also a “change in control event” within the meaning of Treas. Reg. § 1.409A-3(i)(5), which occurs after the Benefit Commencement Date, this Agreement will terminate and the Actuarial Equivalent of any remaining monthly benefit payments will be paid in a lump sum on the date of the Change in Control.

(g)       Change in Control Definition. For purposes of this Section, a “Change in Control” of the Company shall be deemed to have occurred if (i) 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 (ii) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or (iii) any person shall become the beneficial owner of 25% or more of the Company’s outstanding common stock; or (iv) 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.

4.         Prohibition on Assignments. No part of the Supplemental Retirement Benefit shall be liable for the debts, contracts or engagements of Executive or his successors in interest, or be taken in execution by levy, attachment or garnishment or by any other legal or equitable

 

6 Execution Copy

proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge, encumber or assign any Supplemental Retirement Benefit or any interest therein in any manner whatsoever.

5.         Unfunded Obligations of Company. The obligations of Company under the Program shall be unfunded and unsecured, and nothing contained herein shall be construed as providing for assets to be held in trust or escrow or any other form of segregation of the assets of Company for the benefit of Executive or any other person. The interest of Executive or any other person hereunder shall be limited to the right to receive the Supplemental Retirement Benefit as set forth herein. To the extent that Executive or any other person acquires a right to receive any benefit under the Program, such right shall be no greater than the right of an unsecured general creditor of Company. For tax purposes and for purposes of Title I of ERISA, this Program is intended to qualify as an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees, and shall be interpreted accordingly. No action by the Company, its Board of Directors, or the Claims Administrator under this Program shall be construed as creating a trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind in favor of any Participant or Beneficiary or any other persons otherwise entitled to benefits under the Program. The status of the Participant and any Beneficiary with respect to any liabilities assumed by the Company hereunder shall be solely that of unsecured creditors of the Company. The Program constitutes a mere promise by the Company to make benefit payments in the future. Any insurance policy or any other asset acquired or held by the Company in connection with liabilities assumed by it hereunder, shall not be deemed to be held under any trust, escrow or other secured or segregated fund or other fiduciary relationship of any kind for the benefit of a Participant or Beneficiary or to be security for the performance of the obligations of the Company, but shall be, and remain a general, unpledged, unrestricted asset of the Company at all times subject to the claims of general creditors of the Company. Inclusive of the foregoing, the Company may transfer assets, including any informal funding vehicles, to a grantor trust of the type known as a “Rabbi Trust” with the Company as grantor and owner of such trust.

6.         Administrative Provisions. Company shall be the administrator of the Program and shall administer the Program in accordance with the terms of the Program and ERISA.

(a)       Company shall have the discretion, power and authority: (i) to engage actuaries, attorneys, accountants, or other firms or persons and to rely upon the reports or advice of such persons except as otherwise required by law and (ii) to delegate any duty, power or responsibility to any firm or other person engaged under clause (i) or to any other person or persons.

(b)       This Program shall be administered, interpreted and applied fairly and equitably by the Company in its discretion and in accordance with the specified purposes of this Program. All discretionary determinations by Company shall be binding upon all parties, to the maximum extent permitted by law. Company shall be the named fiduciary of this Program.

7.         Successors and Assigns. This Program shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Executive may not assign Executive rights or delegate Executive’s duties under this Program either in whole or in

 

7 Execution Copy

part without the prior written consent of Company. Any attempted assignment or delegation without such consent will be void.

8.         Headings. Any headings of sections of this Program are solely for the convenience of the parties hereto and are not part of this Program, nor are they to be used in its interpretation.

9.         Counterparts. This Program may be executed and delivered by facsimile, and in several counterparts; each such counterpart shall be considered as an original Program and all such executed counterparts shall constitute one Program.

10.       Notice. Any notice, request, instruction, or other document required to be given under this Program by either party to the other shall be in writing and delivered in person or by courier, or mailed by certified mail, postage prepaid, return receipt requested, to the address specified below, or to such other address as the party specifies in writing. Such notice, if in person or by courier, will be effective when delivered, and, if by mail, will be effective upon its mailing as specified:

If to Company:	If to Executive:
VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701 Attn: Chief Executive Officer	Tomas W. Fuller c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-6701 Facsimile No.: (310) 571-6701

Executive shall be responsible for furnishing his current address, and the current name and address of his Beneficiary (as defined below).

11.       Entire Program. This Program sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Program, nor any waiver of any rights under this Program, shall be effective unless in writing signed by the party to be charged. The failure by either party to enforce any rights hereunder shall not be construed as a waiver of any rights of such party.

12.       Severability. If any provision of this Program shall be held or deemed to be invalid, inoperative or unenforceable, such circumstances shall not affect the validity of any other provision of this Program.

13.       Payment in the Case of Executive’s Death. In the event of the death of Executive, payments under this Program shall be made to the person designated as the Beneficiary in writing to the Company. Consent of Executive’s spouse is required for designation of a Beneficiary other than Executive’s spouse.

 

8 Execution Copy

           14.      Application for Benefits.

(a)       Claim for Benefits. If Executive, Executive’s surviving spouse or Beneficiary, as the case may be (the “Claimant”) does not receive timely payment of any benefits which Claimant believes are due and payable under this Program, Claimant may file a claim for Supplemental Retirement Benefit under this Program by notifying the Company in writing, together with such other documents and information as Company may require. Within 90 days following receipt of the claim and all necessary documents and information, Company’s authorized delegate reviewing the claim (the “Claims Administrator”) shall furnish the Claimant with written notice of the decision rendered with respect to the claim. The Claims Administrator shall be designated by the Company’s Board of Directors. The Board of Directors reserves the right to change the Claims Administrator from time to time. Should special circumstances require an extension of time for processing the claim, written notice of the extension shall be furnished to the Claimant prior to the expiration of the initial 90 day period. The notice shall indicate the special circumstances requiring an extension of time and the date by which a final decision is expected to be rendered. In no event shall the period of the extension exceed ninety (90) days from the end of the initial 90 day period.

(b)       Content of Denial. In the case of a complete or partial denial of the Claimant’s claim, a notice written in a manner calculated to be understood by Claimant shall set forth the specific reasons for the denial, references to the Program provisions upon which the denial is based, a description of any additional information or material necessary for the Claimant to perfect the benefit claim (together with an explanation of why the material or information is necessary), and an explanation of the Program’s claims appeal procedure.

(c)       Appeals. In order to appeal the decision rendered in connection with the denial of a claim for benefits or with respect to the amount of benefits under this Program, the Claimant must follow the appeal procedures set forth in this Section 14(c). The appeal must be made in writing in the case where the claim is expressly rejected, within 60 days after the date of receipt of the notice of the decision with respect to the claim, or in the case where the claim has neither been approved or denied within the applicable period provided in Section 14(a) above, within 60 days after the expiration of the period. The Claimant may request that his or her application be given full and fair review by the Named Fiduciary designated by the Board of Directors. The Named Fiduciary shall not be the Claims Administrator nor subordinate to the Claims Administrator. The Board of Directors reserves the right to change the Named Fiduciary from time to time, and to designate a special Named Fiduciary for appeals when deemed necessary. The Claimant may review all pertinent documents and submit issues and comments in writing in connection with the appeal. The decision of the Named Fiduciary shall be made promptly, and not later than 60 days after Company’s receipt of a request for review, unless special circumstances (such as the need to hold a hearing) require an extension of time for processing. In such a case, a decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. If such an extension of time is required, written notice of the extension and the special circumstances shall be given to the Claimant prior to the expiration of the initial 60 day period. The decision on review shall be in writing and shall include specific reasons for the decision, written in a manner designed to be understood by the Claimant, with specific references to the pertinent Program provisions upon which the decision is based.

 

   9 Execution Copy

(d)       Exhaustion of Remedies. No legal action for benefits under the Plan may be brought unless and until the Claimant has exhausted his remedies under this Section 14.

(e)       Withholding. Payments made pursuant to this Program constitute compensation, and the Company shall have the right to deduct from all such payments an amount sufficient to satisfy any federal, state and/or local tax withholding requirements, including without limitation any employment tax withholding required pursuant to Code Section 3121(v) and not previously withheld.

[Remainder of this page is intentionally blank – signature page follows]

 

   10 Execution Copy

IN WITNESS WHEREOF, the parties have executed this Program as of the date set forth below.

COMPANY: VCA ANTECH, INC.	EXECUTIVE:
By:      /s/ Robert L. Antin Title:  Chairman of the Board, President and            Chief Executive Officer Date:  June 30, 2010	By:      /s/ Tomas W. Fuller     Tomas W. Fuller, an individual Date:  June 30, 2010

 

   11 Execution Copy

EX-10

Execution Copy

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”) is entered into effective as of June 28, 2010, by VCA Antech, Inc., a Delaware corporation (the “Company”), and Robert L. Antin, an individual (“Consultant”).

RECITALS

WHEREAS, Consultant is currently employed as Chairman of the Board, Chief Executive Officer and President of the Company pursuant to an Amended and Restated Employment Agreement (the “Employment Agreement”) dated as of November 27, 2001, and amended as of March 9, 2004 and amended again effective January 1, 2009;

WHEREAS, Consultant has been an officer of the Company since its initial formation over 20 years ago and the Company is highly dependent upon Consultant’s expertise and continued services;

WHEREAS, the Company desires to plan for the orderly transition of the duties and responsibilities of Consultant following such time as Consultant is no longer Chief Executive Officer of the Company and to protect certain valuable confidential and trade secret information obtained by Consultant during the course of his employment;

WHEREAS, the Company and Consultant desire that Consultant provide certain consulting services set forth under the terms of this Agreement; and

WHEREAS, terms not otherwise defined in this Agreement will have the meanings ascribed to them in the Employment Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the terms, covenants and conditions contained herein, the parties hereto agree as follows:

1. Consulting Services.

Following the effectiveness of Consultant’s resignation as Chief Executive Officer of the Company other than for Good Reason, following a Change in Control or resulting from Consultant’s Disability (a “Voluntary Termination”) and regardless of whether Consultant’s position as Chairman of the Board is terminated, he will continue to provide business consulting and advice to the Company as described herein.

2. Capacity and Duties.

2.1          Consultant will continue to be an employee of the Company during the term of this Consulting Agreement.

2.2          Subject to the limitations set forth in this Section 2, Consultant will, upon the request or direction of the Company’s Chief Executive Officer, provide business consulting services and advice with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses (the “Services”). The scope of Consultant’s Services will include, but is not necessarily limited to, transition services; consulting with the Company on the development and implementation of the Company’s business strategy; internal and public appearances to support the Company’s communications strategies with shareholders, veterinarians and other professional staff, employees, customers and industry partners; and providing other business consulting services and advice from time to time with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses as reasonably requested by the Chief Executive Officer of the Company.

2.3          Consultant will be available to provide the Services during normal business hours for up to a maximum of 16 hours per week for a maximum of 40 weeks per year, during the first full year of the Term (the “Service Commitment”). The Service Commitment will be a maximum of 12 hours per week and 40 weeks per year during the second year of the Term. The Service Commitment will be a maximum of 12 hours per week and 30 weeks per year during the third year of the Term. The Service Commitment will be a maximum of 8 hours per week and 24 weeks per year during the fourth year of the Term. The Service Commitment will be a maximum of 8 hours per week and 18 weeks per year during the fifth year of the Term. Consultant will provide the Services at a location mutually agreeable to Consultant and the Chief Executive Officer.

2.4          The provision of Services in accordance with the Service Commitment is not intended to constitute a Separation from Service under Section 1.409A-1(h)(1) of the Treasury Regulations and the provisions of the Supplemental Executive Retirement Program entered into by the Company and Consultant.

2.5          The terms of this Section 2 will not prevent Consultant 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, or from engaging in such other activities that do not conflict with the Company so long as he is able to fulfill his duties hereunder.

3. Term.

The term of this Agreement (the “Term”) will commence on the date of a Voluntary Termination (the “Effective Date”), without regard to whether Consultant continues to serve as Chairman of the Board of the Company, and will continue until the fifth anniversary thereof.

4. Compensation.

4.1          Consulting Compensation. As consideration for rendering the Services, the Company will pay to Consultant compensation (“Consulting Compensation”) as follows.

(a)       During each year of the Term, unless the Agreement is earlier terminated pursuant to Section 7, the Company will pay to Consultant annual

 

2

compensation equal to the fixed percentage of Consultant’s Final Compensation that corresponds to such year in the following table:

First Year:	100% of Final Compensation
Second Year:	100% of Final Compensation
Third Year:	75% of Final Compensation
Fourth Year:	75% of Final Compensation
Fifth Year:	75% of Final Compensation

(b)       For purposes of this Agreement, “Final Compensation” means the higher of:

(i)        Consultant’s annual Base Salary immediately before the Effective Date (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans), plus the highest bonus earned by Consultant with respect to services rendered during the four preceding full calendar years immediately before the Effective Date, or

(ii)       The average of Consultant’s annual Base Salary plus any bonus earned (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans) with respect to services rendered during the two highest compensation years for the five-year period ending on the December 31^st immediately preceding the Effective Date.

“Final Compensation” does not include the grant or exercise of stock options and other equity-based compensation, benefits, perquisites, or any other non-cash compensation.

(c)       The Consulting Compensation will be paid in substantially equal periodic installments over the Term, in accordance with the Company’s payroll practices for senior executives, as consideration for his performance of the Services under this Agreement.

4.2 Benefits.

(a) Insurance.

(i)        During the Term of this Agreement Consultant will be an employee of the Company, and accordingly will be entitled to participate in all operative benefit and welfare plans of the Company then in effect, including medical, group life, disability benefits and other insurance plans and benefits, all on the same basis generally applicable to the employees and executive officers of the Company; provided, however, that the Company will provide to Consultant and family medical benefits (including Executive Edge Medical Reimbursement Insurance or a

 

3

substantially similar policy) at least as favorable as the level, type and basis of medical coverage provided to Consultant and as in effect immediately before the Effective Date.

(ii)       Notwithstanding the foregoing, but subject to the proviso in paragraph (i), nothing contained in this Section 4.2(a) will, in any manner whatsoever, directly or indirectly, require or otherwise prohibit the Company from amending, modifying, curtailing, or discontinuing any employee benefit plan at any time. The Company agrees to take such steps as may be required to provide such coverage to Consultant without regard to the terms or provisions of any Company “plan” that require “full-time” or minimum periods of employment in excess of the employment contemplated by this Agreement. However, Company will not be under any obligation to amend or provide benefits pursuant to the terms of any Company plan to the extent that to do so would violate the terms of applicable law or result in prohibited discrimination in favor of Consultant. In such case, the Company will provide alternative benefits coverage that is substantially similar to the level of coverage provided under the terms of such Company plan or plans or as otherwise required under paragraph (i). Upon Consultant’s eligibility for Medicare (or a similar program), Consultant will have the option, but not the obligation, to enroll in Medicare (or such similar program). If Consultant or any eligible family member elects to enroll in Medicare (or a similar program), then the Company’s obligation hereunder to such enrolled person will be limited thereafter to providing Medicare supplementary coverage, Lloyds policy and Executive Edge Medical Reimbursement Insurance or substantially similar policies at least as favorable as the level, type and basis of medical benefits coverage provided to Consultant and as in effect immediately before the Effective Date, except to the extent that applicable law requires Medicare coverage to be secondary to the Company provided coverage.

(iii)      If the Company is unable to provide the medical benefits coverage described in Section 4.2(a)(i) through the Company-sponsored medical plans (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy); then the Company shall secure similar individual health insurance policies providing comparable benefits for Consultant and his family. If the Company fails to secure such similar health insurance policies, then Consultant will be entitled to obtain similar individual health insurance policies providing comparable benefits for Consultant and his family, and the Company shall reimburse Consultant for the cost of such policies upon Consultant’s submission of proof of his prior payment of the premiums for such policies.

(b)       Automobile. The Company will provide Consultant with the use of a luxury automobile that is selected by Consultant and approved by the Compensation Committee of the Board of Directors of the Company, the cost (the “Automobile Cost”)

 

4

of which during the first year of the Term will not be less than the cost that the Company provides for Consultant’s use of immediately prior to the Effective Date. Commencing on the first January 1^st during the Term and annually thereafter, the maximum reimbursement for Automobile Cost will be increased 5% per annum. On the earlier of significant damage or destruction or attaining two years of age, the Company will replace such automobile with a comparable new automobile selected by Consultant. The Company will pay all costs of insurance, repair, maintenance and operation of such automobile. At the end of each two-year period referred to herein (or termination of this Agreement, if earlier), Consultant may, but is not obligated to, purchase the automobile for the book value of the automobile on the Company’s financial records.

4.3          Entertainment. The Company will reimburse Consultant for the cost of entertainment provided by Consultant, in Consultant’s discretion, to the Company’s customers, vendors, employees and strategic partners, provided the aggregate of such annual cost does not exceed $125,000 per annum.

4.4          Reimbursement. Consultant will be entitled to reimbursement from the Company for the reasonable expenses incurred in connection with the performance of the duties and obligations provided for in this Agreement. Reimbursement will be paid upon prompt presentation of expense statements or vouchers and such other supporting information as the Company may from time to time require.

4.5          Office Space. If Consultant requests, the Company will provide Consultant with reimbursement of up to $75,000 for each year of the Term for expenses related to maintaining office space at a location other than the principal executive offices of the Company in connection with the performance of the duties and obligations provided for in this Agreement.

4.6          Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, upon the scheduled expiration of the Term of this Agreement, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

4.7          Reimbursements and Provision of In-Kind Benefits. To the extent that this Agreement requires the Company to provide reimbursements of expenses or in-kind benefits following Consultant’s “Separation from Service” (as defined in Treas. Reg. § 1.409A-1(h)(1)) that are deemed to constitute taxable compensation to Consultant, the amount of any such expenses eligible for reimbursement, or in-kind benefits provided, during one calendar year will not affect the amount of such eligible expenses or in-kind benefits to be provided in any other calendar year, and Consultant’s right to such reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit. The reimbursement of such eligible expenses will be paid or reimbursed reasonably promptly, but not later than December 31 of the calendar year following the calendar year in which the expense was incurred.

 

5

4.8 Additional Section 409A Considerations.

(a)       The payments and benefits under this Agreement are intended to be exempt from the application of Section 409A of the Code. In the event any such payments hereunder may constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Agreement will be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A of the Code and related Department of Treasury guidance, the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the compensation and benefits payable under this Agreement from Section 409A of the Code and preserve the intended tax treatment of such compensation and benefits, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Consultant otherwise would be entitled to under this Agreement without the written consent of Consultant.

(b)       This Agreement will be administered and interpreted to maximize the short-term deferral exception to Section 409A of the Code and Consultant is not permitted, directly or indirectly, to designate the taxable year of a payment made under this Agreement. The portion of any payment under this Agreement that is paid within the “short-term deferral period” as defined in Treas. Reg. § 1.409A-1(b)(4) will be treated as a short-term deferral and not aggregated with other plans or payments. Any other portion of the payment that does not meet the short-term deferral requirement will, to the maximum extent possible, be deemed to satisfy the exception under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) for involuntary separation pay and will not be aggregated with any other payment. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or within the involuntary separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) will be treated as a separate payment. Payment dates provided for in this Agreement will be deemed to incorporate “grace periods” provided by Treas. Reg. § 1.409A-3(d).

(c)       In addition, notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under Sections 4 or 7 hereof, will be paid to Consultant during the 6-month period following Consultant’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without

 

6

resulting in a prohibited distribution, including as a result of Consultant’s death), the Company will pay Consultant a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Consultant during such period.

5. Trade Secrets.

Consultant will not at any time during the Term or 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 (“Trade Secrets”), 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 Consultant will prepare, use, construct, observe, possess or control, will be and remain the Company’s sole property. Consultant’s obligation under the preceding sentence will continue in effect after the end of Consultant’s employment with the Company and the obligations will be binding on Consultant’s assigns, heirs, executors, administrators, and other legal representatives.

6. Return of Corporate Property and Trade Secrets.

Upon termination of this Agreement for any reason, Consultant, or his estate in the event of his death, will 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.

7. Termination of Employment.

7.1 Termination in Case of Death.

(a)       This Agreement and Consultant’s employment hereunder will terminate immediately upon the death of Consultant.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.1, the Company will pay to Consultant’s designated beneficiary or, if none, his estate, on the Termination Date, a lump sum payment of an amount equal to all accrued and unpaid Consulting Compensation payable to Consultant by the Company with respect to that portion of the Term through the Termination Date (the “Accrued Compensation”) plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.1). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except

 

7

 for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

7.2 Termination in Case of Disability.

(a)       If Consultant suffers a physical or mental disability that results in Consultant being unable to perform his duties hereunder for a 16-consecutive-week period, then the Board of Directors of the Company shall select a qualified physician to examine Consultant and review his physical and mental capacity. If such physician determines in good faith that such physical or mental disability renders Consultant incapable of performing his duties hereunder for a period of at least 16 consecutive weeks following the date of such physician’s written opinion, then, unless Consultant resumes the performance of his duties hereunder, Consultant’s employment shall terminate effective 16 weeks following the date of such physician’s written opinion. Notwithstanding the foregoing, Consultant will retain the right, without obligation, to resume the performance of his duties hereunder at any time before such termination, in which case his employment hereunder will continue.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.2, the Company shall pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.2); provided, however, such amount will be reduced by the fixed and determinable amount of any payments to be made to Consultant during the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) under any long-term disability insurance policy maintained by the Company for the benefit of Consultant pursuant to Section 4.2(a). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase the Common Stock of the Company that have been granted to Consultant and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award, and (ii) the Company will continue to provide to Consultant all other benefits referred to in Sections 4.2(a) and 4.2(b) hereof for the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Post-Retirement Medical Benefits Coverage Agreement between the Company and Consultant effective as of December 27, 2007 (the “Medical Benefits Coverage Agreement”).

 

8

7.3 Termination by Consultant for Good Reason.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately for “Good Reason” upon written notice of termination delivered by Consultant to the Company within two years following the initial existence of one or more of the following conditions without Consultant’s consent:

(i)        The willful breach of any of the material obligations of the Company to Consultant under this Agreement, or

(ii)       The relocation of the office where Consultant is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Consultant must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company will have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Consultant will not be entitled to terminate employment under this Section 7.3.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.3, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.3). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.3), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.4 Termination by Consultant without Good Reason.

(a)       This Agreement will terminate immediately upon delivery to the Company of written notice of termination by Consultant without Good Reason.

(b)       Upon termination of this Agreement pursuant to this Section 7.4, the Company will pay to Consultant, on the Termination Date, a lump sum payment of

 

9

the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.5 Termination by the Company without Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon delivery to Consultant of written notice of termination by the Company, which will be deemed “without Cause” unless termination is expressly stated to be pursuant to any of Section 7.1, 7.2 or 7.6.

(b)       Upon termination of this Consultant’s employment pursuant to this Section 7.5, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.5). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.5), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.6 Termination by the Company for Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon written notice delivered by the Company to Consultant of termination for “Cause” by reason of Consultant’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(b)       Upon termination of this Agreement pursuant to this Section 7.6, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.7        Termination Date. For purposes of this Agreement, “Termination Date” means that date on which Consultant’s employment is terminated pursuant to this Section 7.

 

10

8. Change in Control.

8.1       Relief of Consultant Obligations. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control (as defined in Section 8.4) of the Company (i) if the Change in Control occurs prior to the Effective Date, this Agreement will terminate and Consultant will not be obligated to provide any Services to the Company or its successor hereunder and (ii) if the Change in Control occurs after the Effective Date, Consultant’s employment with the Company will terminate and all of Consultant’s duties and obligations as set forth in Sections 1 and 2 will cease.

8.2         Severance Payments. Notwithstanding anything herein to the contrary, upon the occurrence during the Term of a Change in Control of the Company the Company, in lieu of any payment or benefit otherwise due under Section 7 hereof, will pay to Consultant in a lump sum on the fifth day following the occurrence of the Change in Control, which for purposes of this Agreement will be the Termination Date, an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under Section 8.1).

8.3       Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, immediately prior to the occurrence of a Change in Control of the Company during the Term, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all restricted awards or other equity awards that have been awarded to Consultant will become fully vested and no longer subject to restrictions on transfer and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

8.4       Change in Control Definition. For purposes of this Section 8, a “Change in Control” of the Company will be deemed to have occurred if (a) there is consummated (i) any consolidation or merger of the Company into or with another “person” (as such term is used in Sections 3(a)(9), 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 (ii) 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; (b) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; (c) any person becomes 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.

 

11

8.5       Excess Parachute Payments. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Consultant (including any payment or benefit received in connection with a Change in Control or the termination of the Consultant’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 8 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Tax Payment provided under the second paragraph of Section 9.5 of the Employment Agreement, as in effect on June 28, 2010, will be paid to Consultant concurrently with the severance payment referred to in Section 8.2 above. Such Tax Payment will be determined and paid without regard to the fact that the Employment Agreement has expired at the time such Change in Control occurs.

(a)       For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Consultant shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent accountants of nationally recognized standing (“Accounting Firm”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

(b)       If applicable, the Consultant and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 8.5. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 8.5 will be borne by the Company.

9. Injunctive Relief.

Consultant hereby recognizes, acknowledges and agrees that in the event of any breach by Consultant 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. Consultant 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

 

12

breach by Consultant of any of the covenants, agreements, duties or obligations hereunder, the Company or its subsidiaries will 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 Consultant 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 8.5 will 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 Consultant at law, in equity, by statute or otherwise arising out of, in connection with or resulting from the breach by Consultant of any of his covenants, agreements, duties or obligations hereunder.

10. Miscellaneous.

10.1      Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and cannot be changed or terminated except in writing signed by both Consultant and the Company.

10.2          Limited Liabilities. All liabilities incurred by Consultant in his capacity as an employee hereunder will be incurred for the account of the Company, and Consultant will not be personally liable therefor. Consultant will 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 will, and hereby agrees to, indemnify, defend and hold Consultant harmless from and against any and all damages, 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 Agreement on the part of Consultant.

10.3          Notices. All notices, requests and other communications (collectively, “Notices”) given pursuant to this Agreement must be in writing, and must 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:

If to the Company:	VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Attention: Board of Directors Facsimile No.: (310) 571-6701
If to Consultant:	Robert L. Antin c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Facsimile No.: (310) 571-6701

 

     13

10.4          Tax Withholding. The Company may deduct from any payments hereunder amounts sufficient to cover applicable federal, state and local tax withholdings and any other amounts that the Company is required to withhold by applicable law.

10.5          Governing Law. This Agreement is governed by and to be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.

10.6          Counterparts. This Agreement may be executed in any number of counterparts, each of which will be considered to be an original, and all such executed counterparts will together constitute one Agreement.

10.7          Severable Provisions. The provisions of this Agreement are severable, and if any one or more provisions are determined to be judicially unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable.

10.8          Successors and Assigns. This Agreement and all obligations and benefits of Consultant and the Company hereunder will bind and inure to the benefit of Consultant and the Company, their respective affiliates, and their respective successors and assigns.

10.9          Amendments and Waivers. No amendment or waiver of any term or provision of this Agreement will be effective unless made in writing. Any written amendment or waiver will be effective only in the instance given and then only with respect to the specific term or provision (or portion thereof) of this Agreement to which it expressly relates, and will not be deemed or construed to constitute a waiver of any other term or provision (or portion thereof) waived in any other instance. The failure by either party to enforce any rights hereunder will not be construed as a waiver of any rights of such party.

10.10        Title and Headings. The titles and headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.

10.11         Survival. Notwithstanding anything to the contrary contained herein, the provisions of Sections 4.6, 6, 7, 8, and 8.5 hereof will survive the expiration or termination of this Agreement.

Signature page follows

 

       14

IN WITNESS WHEREOF, each of the parties has signed this Amendment on the date opposite their signature below.

Date: June 30, 2010	VCA ANTECH, INC. By: /s/ Tomas W. Fuller Its:  Chief Financial Officer
Date:  June 30, 2010	CONSULTANT /s/ Robert L. Antin Robert L. Antin

 

          15

EX-10

Execution Copy

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”) is entered into effective as of June 28, 2010, 2010, by VCA Antech, Inc., a Delaware corporation (the “Company”), and Arthur J. Antin, an individual (“Consultant”).

RECITALS

WHEREAS, Consultant is currently employed as Chief Operating Officer and Senior Vice President of the Company pursuant to an Amended and Restated Employment Agreement (the “Employment Agreement”) dated as of September 20, 2000, and amended as of November 27, 2001 and amended again effective January 1, 2009;

WHEREAS, Consultant has been an officer of the Company since its initial formation over 20 years ago and the Company is highly dependent upon Consultant’s expertise and continued services;

WHEREAS, the Company desires to plan for the orderly transition of the duties and responsibilities of Consultant following such time as Consultant is no longer Chief Operating Officer and Senior Vice President of the Company and to protect certain valuable confidential and trade secret information obtained by Consultant during the course of his employment;

WHEREAS, the Company and Consultant desire that Consultant provide certain consulting services set forth under the terms of this Agreement; and

WHEREAS, terms not otherwise defined in this Agreement will have the meanings ascribed to them in the Employment Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the terms, covenants and conditions contained herein, the parties hereto agree as follows:

1. Consulting Services.

Following the effectiveness of Consultant’s resignation as Chief Operating Officer and Senior Vice President of the Company other than for Good Reason, following a Change in Control or resulting from Consultant’s Disability (a “Voluntary Termination”), he will continue to provide business consulting and advice to the Company as described herein.

2. Capacity and Duties.

2.1.      Consultant will continue to be an employee of the Company during the term of this Agreement.

2.2.      Subject to the limitations set forth in this Section 2, Consultant will, upon the request or direction of the Company’s Chief Executive Officer, provide business consulting

services and advice with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses (the “Services”). The scope of Consultant’s Services will include, but is not necessarily limited to, transition services; consulting with the Company on the development and implementation of the Company’s business strategy; internal and public appearances to support the Company’s communications strategies with shareholders, veterinarians and other professional staff, employees, customers and industry partners; and providing other business consulting services and advice from time to time with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses as reasonably requested by Chief Executive Officer of the Company.

2.3.      Consultant will be available to provide the Services during normal business hours for up to a maximum of 16 hours per week for a maximum of 40 weeks per year, during the first full year of the Term (the “Service Commitment”). The Service Commitment will be a maximum of 12 hours per week and 40 weeks per year during the second year of the Term. The Service Commitment will be a maximum of 12 hours per week and 30 weeks per year during the third year of the Term. The Service Commitment will be a maximum of 8 hours per week and 24 weeks per year during the fourth year of the Term. Consultant will provide the Services at a location mutually agreeable to Consultant and the Chief Executive Officer.

2.4.      The provision of Services in accordance with the Service Commitment is not intended to constitute a Separation from Service under Section 1.409A-1(h)(1) of the Treasury Regulations and the provisions of the Supplemental Executive Retirement Program entered into by the Company and Consultant.

2.5.      The terms of this Section 2 will not prevent Consultant 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, or from engaging in such other activities that do not conflict with the Company so long as he is able to fulfill his duties hereunder.

3. Term.

The term of this Agreement (the “Term”) will commence on the date of a Voluntary Termination (the “Effective Date”), and will continue until the fourth anniversary thereof.

4. Compensation.

4.1.      Consulting Compensation. As consideration for rendering the Services, the Company will pay to Consultant compensation (“Consulting Compensation”) as follows.

(a)       During each year of the Term, unless the Agreement is earlier terminated pursuant to Section 7, the Company will pay to Consultant annual compensation equal to the fixed percentage of Consultant’s Final Compensation that corresponds to such year in the following table:

 

2

First Year:	100% of Final Compensation
Second Year:	75% of Final Compensation
Third Year:	50% of Final Compensation
Fourth Year:	25% of Final Compensation

(b)       For purposes of this Agreement, “Final Compensation” means the higher of:

(i)        Consultant’s annual Base Salary immediately before the Effective Date (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans), plus the highest bonus earned by Executive with respect to services rendered during the four preceding full calendar years immediately before the Effective Date, or

(ii)       The average of Consultant’s annual Base Salary plus any bonus earned (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans) with respect to services rendered during the two highest compensation years for the five-year period ending on the December 31^st immediately preceding the Effective Date.

“Final Compensation” does not include the grant or exercise of stock options and other equity-based compensation, benefits, perquisites, or any other non-cash compensation.

(c)       The Consulting Compensation will be paid in substantially equal periodic installments over the Term, in accordance with the Company’s payroll practices for senior executives, as consideration for his performance of the Services under this Agreement.

4.2. Benefits.

(a) Insurance.

(i)        During the Term of this Agreement Consultant will be an employee of the Company, and accordingly will be entitled to participate in all operative benefit and welfare plans of the Company then in effect, including medical, group life, disability benefits and other insurance plans and benefits, all on the same basis generally applicable to the employees and executive officers of the Company; provided, however, that the Company will provide to Consultant and family medical benefits (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy) at least as favorable as the level, type and basis of medical coverage provided to Consultant and as in effect immediately before the Effective Date.

 

3

(ii)       Notwithstanding the foregoing, but subject to the proviso in paragraph (i), nothing contained in this Section 4.2(a) will, in any manner whatsoever, directly or indirectly, require or otherwise prohibit the Company from amending, modifying, curtailing, or discontinuing any employee benefit plan at any time. The Company agrees to take such steps as may be required to provide such coverage to Consultant without regard to the terms or provisions of any Company “plan” that require “full-time” or minimum periods of employment in excess of the employment contemplated by this Agreement. However, Company will not be under any obligation to amend or provide benefits pursuant to the terms of any Company plan to the extent that to do so would violate the terms of applicable law or result in prohibited discrimination in favor of Consultant. In such case, the Company will provide alternative benefits coverage that is substantially similar to the level of coverage provided under the terms of such Company plan or plans or as otherwise required under paragraph (i). Upon Consultant’s eligibility for Medicare (or a similar program), Consultant will have the option, but not the obligation, to enroll in Medicare (or such similar program). If Consultant or any eligible family member elects to enroll in Medicare (or a similar program), then the Company’s obligation hereunder to such enrolled person will be limited thereafter to providing Medicare supplementary coverage, Lloyds policy and Executive Edge Medical Reimbursement Insurance or substantially similar policies at least as favorable as the level, type and basis of medical benefits coverage provided to Consultant and as in effect immediately before the Effective Date, except to the extent that applicable law requires Medicare coverage to be secondary to the Company provided coverage.

(iii)      If the Company is unable to provide the medical benefits coverage described in Section 4.2(a)(i) through the Company-sponsored medical plans (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy); then the Company shall secure similar individual health insurance policies providing comparable benefits for Consultant and his family. If the Company fails to secure such similar health insurance policies, then Consultant will be entitled to obtain similar individual health insurance policies providing comparable benefits for Consultant and his family, and the Company shall reimburse Consultant for the cost of such policies upon Consultant’s submission of proof of his prior payment of the premiums for such policies.

(b)       Automobile and Entertainment Expenses. During the Term the Company will reimburse Consultant for automobile expenses (costs of leasing, insurance, repair, maintenance and operation of such automobile), up to a maximum of $36,000 per annum, and the cost of entertainment provided by Consultant, in Consultant’s discretion, to the Company’s customers, vendors, employees and strategic partners.

 

4

4.3.      Reimbursement. Consultant will be entitled to reimbursement from the Company for the reasonable expenses incurred in connection with the performance of the duties and obligations provided for in this Agreement. Reimbursement will be paid upon prompt presentation of expense statements or vouchers and such other supporting information as the Company may from time to time require.

4.4.      Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, upon the scheduled expiration of the Term of this Agreement, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

4.5.      Reimbursements and Provision of In-Kind Benefits. To the extent that this Agreement requires the Company to provide reimbursements of expenses or in-kind benefits following Consultant’s “Separation from Service” (as defined in Treas. Reg. § 1.409A-1(h)(1)) that are deemed to constitute taxable compensation to Consultant, the amount of any such expenses eligible for reimbursement, or in-kind benefits provided, during one calendar year will not affect the amount of such eligible expenses or in-kind benefits to be provided in any other calendar year, and Consultant’s right to such reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit. The reimbursement of such eligible expenses will be paid or reimbursed reasonably promptly, but not later than December 31 of the calendar year following the calendar year in which the expense was incurred.

4.6. Additional Section 409A Considerations.

(a)       The payments and benefits under this Agreement are intended to be exempt from the application of Section 409A of the Code. In the event any such payments hereunder may constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Agreement will be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A of the Code and related Department of Treasury guidance, the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the compensation and benefits payable under this Agreement from Section 409A of the Code and preserve the intended tax treatment of such compensation and benefits, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Consultant otherwise would be entitled to under this Agreement without the written consent of Consultant.

 

5

(b)       This Agreement will be administered and interpreted to maximize the short-term deferral exception to Section 409A of the Code and Consultant is not permitted, directly or indirectly, to designate the taxable year of a payment made under this Agreement. The portion of any payment under this Agreement that is paid within the “short-term deferral period” as defined in Treas. Reg. § 1.409A-1(b)(4) will be treated as a short-term deferral and not aggregated with other plans or payments. Any other portion of the payment that does not meet the short-term deferral requirement will, to the maximum extent possible, be deemed to satisfy the exception under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) for involuntary separation pay and will not be aggregated with any other payment. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or within the involuntary separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) will be treated as a separate payment. Payment dates provided for in this Agreement will be deemed to incorporate “grace periods” provided by Treas. Reg. § 1.409A-3(d).

(c)       In addition, notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under Sections 4or 7 hereof, will be paid to Consultant during the 6-month period following Consultant’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Consultant’s death), the Company will pay Consultant a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Consultant during such period.

5. Trade Secrets.

Consultant will not at any time during the Term or 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 (“Trade Secrets”), 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 Consultant will prepare, use, construct, observe, possess or control, will be and remain the Company’s sole property. Consultant’s obligation under the preceding sentence will continue in effect after the end of Consultant’s employment with the Company and the obligations will be binding on Consultant’s assigns, heirs, executors, administrators, and other legal representatives.

 

6

6. Return of Corporate Property and Trade Secrets.

Upon termination of this Agreement for any reason, Consultant, or his estate in the event of his death, will 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.

7. Termination of Employment.

7.1. Termination in Case of Death.

(a)       This Agreement and Consultant’s employment hereunder will terminate immediately upon the death of Consultant.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.1, the Company will pay to Consultant’s designated beneficiary or, if none, his estate, on the Termination Date, a lump sum payment of an amount equal to all accrued and unpaid Consulting Compensation payable to Consultant by the Company with respect to that portion of the Term through the Termination Date (the “Accrued Compensation”) plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.1). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

7.2. Termination in Case of Disability.

(a)       If Consultant suffers a physical or mental disability that results in Consultant being unable to perform his duties hereunder for a 16-consecutive-week period, then the Board of Directors shall select a qualified physician to examine Consultant and review his physical and mental capacity. If such physician determines in good faith that such physical or mental disability renders Consultant incapable of performing his duties hereunder for a period of at least 16 consecutive weeks following the date of such physician’s written opinion, then, unless Consultant resumes the performance of his duties hereunder, Consultant’s employment shall terminate effective 16 weeks following the date of such physician’s written opinion. Notwithstanding the foregoing, Consultant will retain the right, without obligation, to resume the performance of his duties hereunder at any time before such termination, in which case his employment hereunder will continue.

 

7

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.2, the Company shall pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.2); provided, however, such amount will be reduced by the fixed and determinable amount of any payments to be made to Consultant during the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) under any long-term disability insurance policy maintained by the Company for the benefit of Consultant pursuant to Section 4.2(a). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase the Common Stock of the Company that have been granted to Consultant and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award, and (ii) the Company will continue to provide to Consultant all other benefits referred to in Sections 4.2(a) and 4.2(b) hereof for the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Post-Retirement Medical Benefits Coverage Agreement between the Company and Consultant effective as of December 27, 2007 (the “Medical Benefits Coverage Agreement”).

7.3. Termination by Consultant for Good Reason.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately for “Good Reason” upon written notice of termination delivered by Consultant to the Company within two years following the initial existence of one or more of the following conditions without Consultant’s consent:

(i)        The willful breach of any of the material obligations of the Company to Consultant under this Agreement, or

(ii)       The relocation of the office where Consultant is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Consultant must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company will have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Consultant will not be entitled to terminate employment under this Section 7.3.

 

      8

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.3, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.3). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and the automobile expense reimbursements that would otherwise be payable to Consultant pursuant to Section 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.3), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.4. Termination by Consultant without Good Reason.

(a)       This Agreement will terminate immediately upon delivery to the Company of written notice of termination by Consultant without Good Reason.

(b)       Upon termination of this Agreement pursuant to this Section 7.4, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.5. Termination by the Company without Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon delivery to Consultant of written notice of termination by the Company, which will be deemed “without Cause” unless termination is expressly stated to be pursuant to any of Section 7.1, 7.2 or 7.6.

(b)       Upon termination of this Consultant’s employment pursuant to this Section 7.5, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.5). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the

 

     9

Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and the automobile expense reimbursements that would otherwise be payable to Consultant pursuant to Section 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.5), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.6. Termination by the Company for Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon written notice delivered by the Company to Consultant of termination for “Cause” by reason of Consultant’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(b)       Upon termination of this Agreement pursuant to this Section 7.6, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.7.      Termination Date. For purposes of this Agreement, “Termination Date” means that date on which Consultant’s employment is terminated pursuant to this Section 7.

8. Change in Control.

8.1.      Relief of Consultant Obligations. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control (as defined in Section 8.4) of the Company (i) if the Change in Control occurs prior to the Effective Date, this Agreement will terminate and Consultant will not be obligated to provide any Services to the Company or its successor hereunder, and (ii) if the Change in Control occurs after the Effective Date, Consultant’s employment with the Company will terminate and all of Consultant’s duties and obligations as set forth in Sections 1 and 2 will cease.

8.2.      Severance Payments. Notwithstanding anything herein to the contrary, upon the occurrence during the Term of a Change in Control of the Company the Company, in lieu of any payment or benefit otherwise due under Section 7 hereof, will pay to Consultant in a lump sum on the fifth day following the occurrence of the Change in Control, which for purposes of this Agreement will be the Termination Date, an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the

 

     10

remaining scheduled Term (determined without regard to the termination of this Agreement under Section 8.1).

8.3.      Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, immediately prior to the occurrence of a Change in Control of the Company during the Term, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all restricted awards or other equity awards that have been awarded to Consultant will become fully vested and no longer subject to restrictions on transfer and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

8.4.      Change in Control Definition. For purposes of this Section 8, a “Change in Control” of the Company will be deemed to have occurred if (a) there is consummated (i) any consolidation or merger of the Company into or with another “person” (as such term is used in Sections 3(a)(9), 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 (ii) 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; (b) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; (c) any person becomes 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.

8.5.      Excess Parachute Payments. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Consultant (including any payment or benefit received in connection with a Change in Control or the termination of the Consultant’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 8 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Tax Payment provided under the second paragraph of Section 9.5 of the Employment Agreement, as in effect on June 28, 2010, will be paid to Consultant concurrently with the severance payment referred to in Section Error! Reference source not found. above. Such Tax Payment will be determined and paid without regard to the fact that the Employment Agreement has expired at the time such Change in Control occurs.

 

           11

(a)       For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Consultant shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent accountants of nationally recognized standing (“Accounting Firm”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

(b)       If applicable, the Consultant and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 8.5. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 8.5 will be borne by the Company.

9. Injunctive Relief.

Consultant hereby recognizes, acknowledges and agrees that in the event of any breach by Consultant 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. Consultant 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 Consultant of any of the covenants, agreements, duties or obligations hereunder, the Company or its subsidiaries will 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 Consultant 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 8.5 will 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 Consultant at law, in equity, by statute or otherwise arising out of, in connection with or resulting from the breach by Consultant of any of his covenants, agreements, duties or obligations hereunder.

 

                   12

10. Miscellaneous.

10.1.    Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and cannot be changed or terminated except in writing signed by both Consultant and the Company.

10.2.    Limited Liabilities. All liabilities incurred by Consultant in his capacity as an employee hereunder will be incurred for the account of the Company, and Consultant will not be personally liable therefor. Consultant will 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 will, and hereby agrees to, indemnify, defend and hold Consultant harmless from and against any and all damages, 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 Agreement on the part of Consultant.

10.3.    Notices. All notices, requests and other communications (collectively, “Notices”) given pursuant to this Agreement must be in writing, and must 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:

If to the Company:	VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Attention: Board of Directors Facsimile No.: (310) 571-6701
If to Consultant:	Arthur J. Antin c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Facsimile No.: (310) 571-6701

10.4.    Tax Withholding. The Company may deduct from any payments hereunder amounts sufficient to cover applicable federal, state and local tax withholdings and any other amounts that the Company is required to withhold by applicable law.

10.5.    Governing Law. This Agreement is governed by and to be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.

10.6.    Counterparts. This Agreement may be executed in any number of counterparts, each of which will be considered to be an original, and all such executed counterparts will together constitute one Agreement.

 

                 13

10.7.    Severable Provisions. The provisions of this Agreement are severable, and if any one or more provisions are determined to be judicially unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable.

10.8.    Successors and Assigns. This Agreement and all obligations and benefits of Consultant and the Company hereunder will bind and inure to the benefit of Consultant and the Company, their respective affiliates, and their respective successors and assigns.

10.9.    Amendments and Waivers. No amendment or waiver of any term or provision of this Agreement will be effective unless made in writing. Any written amendment or waiver will be effective only in the instance given and then only with respect to the specific term or provision (or portion thereof) of this Agreement to which it expressly relates, and will not be deemed or construed to constitute a waiver of any other term or provision (or portion thereof) waived in any other instance. The failure by either party to enforce any rights hereunder will not be construed as a waiver of any rights of such party.

10.10.  Title and Headings. The titles and headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.

10.11.  Survival. Notwithstanding anything to the contrary contained herein, the provisions of Sections 4.4, 6, 7, 8, and 8.5 hereof will survive the expiration or termination of this Agreement.

Signature page follows

 

                  14

IN WITNESS WHEREOF, each of the parties has signed this Amendment on the date opposite their signature below.

Date: June 30, 2010	VCA ANTECH, INC. By: /s/ Robert L. Antin Its: Chairman of the Board, President and        Chief Executive Officer
Date:  June 30, 2010	CONSULTANT /s/ Arthur J. Antin Arthur J. Antin

 

                       15

EX-10

Execution Copy

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”) is entered into effective as of June 28, 2010, by VCA Antech, Inc., a Delaware corporation (the “Company”), and Neil Tauber, an individual (“Consultant”).

RECITALS

WHEREAS, Consultant is currently employed as Senior Vice President of Development of the Company;

WHEREAS, Consultant has been an officer of the Company since its initial formation, and the Company is highly dependent upon Consultant’s expertise and continued services;

WHEREAS, the Company desires to plan for the orderly transition of the duties and responsibilities of Consultant following such time as Consultant is no longer Senior Vice President of Development of the Company and to protect certain valuable confidential and trade secret information obtained by Consultant during the course of his employment; and

WHEREAS, the Company and Consultant desire that Consultant provide certain consulting services set forth under the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the terms, covenants and conditions contained herein, the parties hereto agree as follows:

1. Consulting Services.

Following the effectiveness of Consultant’s resignation as Chief Financial Officer, Vice President and Secretary of the Company on or after January 1, 2013 other than for Good Reason, following a Change in Control or resulting from Consultant’s Disability (a “Qualifying Voluntary Termination”), he will continue to provide business consulting and advice to the Company as described herein.

2. Capacity and Duties.

2.1.      Consultant will continue to be an employee of the Company during the term of this Agreement.

2.2.      Subject to the limitations set forth in this Section 2, Consultant will, upon the request or direction of the Company’s Chief Executive Officer, provide business consulting services and advice with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses (the “Services”). The scope of Consultant’s Services will include, but is not necessarily limited to, transition services; consulting with the Company on the development and implementation of the Company’s business strategy; internal and public appearances to support the Company’s communications strategies with shareholders,

veterinarians and other professional staff, employees, customers and industry partners; and providing other business consulting services and advice from time to time with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses as reasonably requested by the Chief Executive Officer of the Company.

2.3.      Consultant will be available to provide the Services during normal business hours for up to a maximum of 16 hours per week, for a maximum of 40 weeks per year, during the first full year of the Term (the “Service Commitment”). The Service Commitment will be a maximum of 12 hours per week and 40 weeks per year during the second year of the Term. The Service Commitment will be a maximum of 12 hours per week and 30 weeks per year during the third year of the Term. Consultant will provide the Services at a location mutually agreeable to Consultant and the Chief Executive Officer.

2.4.      The provision of Services in accordance with the Service Commitment is not intended to constitute a Separation from Service under Section 1.409A-1(h)(1) of the Treasury Regulations and the provisions of the Supplemental Executive Retirement Program entered into by the Company and Consultant.

2.5.      The terms of this Section 2 will not prevent Consultant 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, or from engaging in such other activities that do not conflict with the Company so long as he is able to fulfill his duties hereunder.

3. Term.

The term of this Agreement (the “Term”) will commence on the date of a Qualifying Voluntary Termination (the “Effective Date”) and will continue until the third anniversary thereof. Notwithstanding the foregoing, this Agreement is contingent on Consultant providing the Company, not less than six months before the Effective Date, with written notice of his intent to terminate his position as Chief Financial Officer, Vice President and Secretary of the Company and to commence performance of the Services under this Agreement.

4. Compensation.

4.1.      Consulting Compensation. As consideration for rendering the Services, the Company will pay to Consultant compensation (“Consulting Compensation”) as follows.

(a)       During each year of the Term, unless the Agreement is earlier terminated pursuant to Section 7, the Company will pay to Consultant annual compensation equal to the fixed percentage of Consultant’s Final Compensation that corresponds to such year in the following table:

First Year:	100% of Final Compensation
Second Year:	50% of Final Compensation
Third Year:	35% of Final Compensation

 

     2

(b)       For purposes of this Agreement, “Final Compensation” means the higher of:

(i)        Consultant’s annual Base Salary immediately before the Effective Date (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans), plus the highest bonus earned by Executive with respect to services rendered during the four preceding full calendar years immediately before the Effective Date, or

(ii)       The average of Consultant’s annual Base Salary plus any bonus earned (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans) with respect to services rendered during the two highest compensation years for the five-year period ending on the December 31^st immediately preceding the Effective Date.

“Final Compensation” does not include the grant or exercise of stock options and other equity-based compensation, benefits, perquisites, or any other non-cash compensation.

(c)       The Consulting Compensation will be paid in substantially equal periodic installments over the Term, in accordance with the Company’s payroll practices for senior executives, as consideration for his performance of the Services under this Agreement.

4.2. Benefits.

(a) Insurance.

(i)        During the Term of this Agreement Consultant will be an employee of the Company, and accordingly will be entitled to participate in all operative benefit and welfare plans of the Company then in effect, including medical, group life, disability benefits and other insurance plans and benefits, all on the same basis generally applicable to the employees and executive officers of the Company; provided, however, that the Company will provide to Consultant and family medical benefits (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy) at least as favorable as the level, type and basis of medical coverage provided to Consultant and as in effect immediately before the Effective Date.

(ii)       Notwithstanding the foregoing, but subject to the proviso in paragraph (i), nothing contained in this Section 4.2(a) will, in any manner whatsoever, directly or indirectly, require or otherwise prohibit the Company from amending, modifying, curtailing, or discontinuing any employee benefit plan at any time. The Company agrees to take such steps as may be required to provide such coverage to Consultant without regard to the terms or provisions of any Company “plan” that require

 

      3

“full-time” or minimum periods of employment in excess of the employment contemplated by this Agreement. However, Company will not be under any obligation to amend or provide benefits pursuant to the terms of any Company plan to the extent that to do so would violate the terms of applicable law or result in prohibited discrimination in favor of Consultant. In such case, the Company will provide alternative benefits coverage that is substantially similar to the level of coverage provided under the terms of such Company plan or plans or as otherwise required under paragraph (i). Upon Consultant’s eligibility for Medicare (or a similar program), Consultant will have the option, but not the obligation, to enroll in Medicare (or such similar program). If Consultant or any eligible family member elects to enroll in Medicare (or a similar program), then the Company’s obligation hereunder to such enrolled person will be limited thereafter to providing Medicare supplementary coverage, Lloyds policy and Executive Edge Medical Reimbursement Insurance or substantially similar policies at least as favorable as the level, type and basis of medical benefits coverage provided to Consultant and as in effect immediately before the Effective Date, except to the extent that applicable law requires Medicare coverage to be secondary to the Company provided coverage.

(iii)      If the Company is unable to provide the medical benefits coverage described in Section 4.2(a)(i) through the Company-sponsored medical plans (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy); then the Company shall secure similar individual health insurance policies providing comparable benefits for Consultant and his family. If the Company fails to secure such similar health insurance policies, then Consultant will be entitled to obtain similar individual health insurance policies providing comparable benefits for Consultant and his family, and the Company shall reimburse Consultant for the cost of such policies upon Consultant’s submission of proof of his prior payment of the premiums for such policies.

(b)       Automobile and Entertainment Expenses. During the Term the Company will reimburse Consultant for automobile expenses (costs of leasing, insurance, repair, maintenance and operation of such automobile), up to a maximum of $25,000 per annum, and the cost of entertainment provided by Consultant, in Consultant’s discretion, to the Company’s customers, vendors, employees and strategic partners.

4.3.      Reimbursement. Consultant will be entitled to reimbursement from the Company for the reasonable expenses incurred in connection with the performance of the duties and obligations provided for in this Agreement. Reimbursement will be paid upon prompt presentation of expense statements or vouchers and such other supporting information as the Company may from time to time require.

4.4.      Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, upon the scheduled expiration of the Term of this Agreement, all

 

          4

options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

4.5.      Reimbursements and Provision of In-Kind Benefits. To the extent that this Agreement requires the Company to provide reimbursements of expenses or in-kind benefits following Consultant’s “Separation from Service” (as defined in Treas. Reg. § 1.409A-1(h)(1)) that are deemed to constitute taxable compensation to Consultant, the amount of any such expenses eligible for reimbursement, or in-kind benefits provided, during one calendar year will not affect the amount of such eligible expenses or in-kind benefits to be provided in any other calendar year, and Consultant’s right to such reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit. The reimbursement of such eligible expenses will be paid or reimbursed reasonably promptly, but not later than December 31 of the calendar year following the calendar year in which the expense was incurred.

4.6. Additional Section 409A Considerations.

(a)       The payments and benefits under this Agreement are intended to be exempt from the application of Section 409A of the Code. In the event any such payments hereunder may constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Agreement will be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A of the Code and related Department of Treasury guidance, the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the compensation and benefits payable under this Agreement from Section 409A of the Code and preserve the intended tax treatment of such compensation and benefits, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Consultant otherwise would be entitled to under this Agreement without the written consent of Consultant.

(b)       This Agreement will be administered and interpreted to maximize the short-term deferral exception to Section 409A of the Code and Consultant is not permitted, directly or indirectly, to designate the taxable year of a payment made under this Agreement. The portion of any payment under this Agreement that is paid within the “short-term deferral period” as defined in Treas. Reg. § 1.409A-1(b)(4) will be treated as a short-term deferral and not aggregated with other plans or payments. Any other portion of the payment that does not meet the short-term deferral requirement will, to the

 

             5

maximum extent possible, be deemed to satisfy the exception under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) for involuntary separation pay and will not be aggregated with any other payment. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or within the involuntary separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) will be treated as a separate payment. Payment dates provided for in this Agreement will be deemed to incorporate “grace periods” provided by Treas. Reg. § 1.409A-3(d).

(c)       In addition, notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under Sections 0 or 7 hereof, will be paid to Consultant during the 6-month period following Consultant’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Consultant’s death), the Company will pay Consultant a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Consultant during such period.

5. Trade Secrets.

Consultant will not at any time during the Term or 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 (“Trade Secrets”), 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 Consultant will prepare, use, construct, observe, possess or control, will be and remain the Company’s sole property. Consultant’s obligation under the preceding sentence will continue in effect after the end of Consultant’s employment with the Company and the obligations will be binding on Consultant’s assigns, heirs, executors, administrators, and other legal representatives.

6. Return of Corporate Property and Trade Secrets.

Upon termination of this Agreement for any reason, Consultant, or his estate in the event of his death, will 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.

 

                 6

7. Termination of Employment.

7.1. Termination in Case of Death.

(a)       This Agreement and Consultant’s employment hereunder will terminate immediately upon the death of Consultant.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.1, the Company will pay to Consultant’s designated beneficiary or, if none, his estate, on the Termination Date, a lump sum payment of an amount equal to all accrued and unpaid Consulting Compensation payable to Consultant by the Company with respect to that portion of the Term through the Termination Date (the “Accrued Compensation”) plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.1). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

7.2. Termination in Case of Disability.

(a)       If Consultant suffers a physical or mental disability that results in Consultant being unable to perform his duties hereunder for a 16-consecutive-week period, then the Board of Directors of the Company shall select a qualified physician to examine Consultant and review his physical and mental capacity. If such physician determines in good faith that such physical or mental disability renders Consultant incapable of performing his duties hereunder for a period of at least 16 consecutive weeks following the date of such physician’s written opinion, then, unless Consultant resumes the performance of his duties hereunder, Consultant’s employment shall terminate effective 16 weeks following the date of such physician’s written opinion. Notwithstanding the foregoing, Consultant will retain the right, without obligation, to resume the performance of his duties hereunder at any time before such termination, in which case his employment hereunder will continue.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.2, the Company shall pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.2); provided, however, such amount will be reduced by the fixed and determinable amount of

 

                 7

any payments to be made to Consultant during the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) under any long-term disability insurance policy maintained by the Company for the benefit of Consultant pursuant to Section 4.2(a). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase the Common Stock of the Company that have been granted to Consultant and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award, and (ii) the Company will continue to provide to Consultant all other benefits referred to in Sections 4.2(a) and 4.2(b) hereof for the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Post-Retirement Medical Benefits Coverage Agreement between the Company and Consultant effective as of December 27, 2007 (the “Medical Benefits Coverage Agreement”).

7.3. Termination by Consultant for Good Reason.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately for “Good Reason” upon written notice of termination delivered by Consultant to the Company within two years following the initial existence of one or more of the following conditions without Consultant’s consent:

(i)        The willful breach of any of the material obligations of the Company to Consultant under this Agreement, or

(ii)       The relocation of the office where Consultant is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Consultant must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company will have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Consultant will not be entitled to terminate employment under this Section 7.3.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.3, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.3).

 

                   8

In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and the automobile expense reimbursements that would otherwise be payable to Consultant pursuant to Section 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.3), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.4. Termination by Consultant without Good Reason.

(a)       This Agreement will terminate immediately upon delivery to the Company of written notice of termination by Consultant without Good Reason.

(b)       Upon termination of this Agreement pursuant to this Section 7.4, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.5. Termination by the Company without Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon delivery to Consultant of written notice of termination by the Company, which will be deemed “without Cause” unless termination is expressly stated to be pursuant to any of Section 7.1, 7.2 or 7.6.

(b)       Upon termination of this Consultant’s employment pursuant to this Section 7.5, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.5). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full

 

               9

term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and the automobile expense reimbursements that would otherwise be payable to Consultant pursuant to Section 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.5), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.6. Termination by the Company for Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon written notice delivered by the Company to Consultant of termination for “Cause” by reason of Consultant’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(b)       Upon termination of this Agreement pursuant to this Section 7.6, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.7.      Termination Date. For purposes of this Agreement, “Termination Date” means that date on which Consultant’s employment is terminated pursuant to this Section 7.

8. Change in Control.

8.1.      Relief of Consultant Obligations. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control (as defined in Section 8.4) of the Company (i) if the Change in Control occurs prior to the Effective Date, this Agreement will terminate and Consultant will not be obligated to provide any Services to the Company or its successor hereunder, and (ii) if the Change in Control occurs after the Effective Date, Consultant’s employment with the Company will terminate and all of Consultant’s duties and obligations as set forth in Sections 1 and 2 will cease.

8.2.      Severance Payments. Notwithstanding anything herein to the contrary, upon the occurrence during the Term of a Change in Control of the Company the Company, in lieu of any payment or benefit otherwise due under Section 7 hereof, will pay to Consultant in a lump sum on the fifth day following the occurrence of the Change in Control, which for purposes of this Agreement will be the Termination Date, an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under Section 8.1).

8.3.      Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, immediately prior to the occurrence of a Change in Control of the Company during the Term, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all

 

                 10

restricted awards or other equity awards that have been awarded to Consultant will become fully vested and no longer subject to restrictions on transfer and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

8.4.      Change in Control Definition. For purposes of this Section 8, a “Change in Control” of the Company will be deemed to have occurred if (a) there is consummated (i) any consolidation or merger of the Company into or with another “person” (as such term is used in Sections 3(a)(9), 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 (ii) 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; (b) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; (c) any person becomes 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.

8.5.      Excess Parachute Payments. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Consultant (including any payment or benefit received in connection with a Change in Control or the termination of the Consultant’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 8 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Tax Payment provided under Section 2.8 of the Amended Letter Agreement, dated April 25, 2008 between Consultant and Company (the “Letter Agreement”), as in effect on June 28, 2010, will be paid to Consultant concurrently with the severance payment referred to in Section Error! Reference source not found. above. Such Tax Payment will be determined and paid without regard to the fact that the Letter Agreement has expired at the time such Change in Control occurs.

(a)       For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Consultant shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent accountants of nationally recognized standing (“Accounting Firm”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including

 

                  11

by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

(b)       If applicable, the Consultant and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 8.5. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 8.5 will be borne by the Company.

9. Injunctive Relief.

Consultant hereby recognizes, acknowledges and agrees that in the event of any breach by Consultant 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. Consultant 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 Consultant of any of the covenants, agreements, duties or obligations hereunder, the Company or its subsidiaries will 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 Consultant 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 8.5 will 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 Consultant at law, in equity, by statute or otherwise arising out of, in connection with or resulting from the breach by Consultant of any of his covenants, agreements, duties or obligations hereunder.

10. Miscellaneous.

10.1.    Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and cannot be changed or terminated except in writing signed by both Consultant and the Company.

10.2.    Limited Liabilities. All liabilities incurred by Consultant in his capacity as an employee hereunder will be incurred for the account of the Company, and Consultant will not

 

                  12

be personally liable therefor. Consultant will 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 will, and hereby agrees to, indemnify, defend and hold Consultant harmless from and against any and all damages, 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 Agreement on the part of Consultant.

10.3.    Notices. All notices, requests and other communications (collectively, “Notices”) given pursuant to this Agreement must be in writing, and must 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:

If to the Company:	VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Attention: Board of Directors Facsimile No.: (310) 571-6701
If to Consultant:	Neil Tauber c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Facsimile No.: (310) 571-6701

10.4.    Tax Withholding. The Company may deduct from any payments hereunder amounts sufficient to cover applicable federal, state and local tax withholdings and any other amounts that the Company is required to withhold by applicable law.

10.5.    Governing Law. This Agreement is governed by and to be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.

10.6.    Counterparts. This Agreement may be executed in any number of counterparts, each of which will be considered to be an original, and all such executed counterparts will together constitute one Agreement.

10.7.    Severable Provisions. The provisions of this Agreement are severable, and if any one or more provisions are determined to be judicially unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable.

10.8.    Successors and Assigns. This Agreement and all obligations and benefits of Consultant and the Company hereunder will bind and inure to the benefit of Consultant and the Company, their respective affiliates, and their respective successors and assigns.

 

               13

10.9.    Amendments and Waivers. No amendment or waiver of any term or provision of this Agreement will be effective unless made in writing. Any written amendment or waiver will be effective only in the instance given and then only with respect to the specific term or provision (or portion thereof) of this Agreement to which it expressly relates, and will not be deemed or construed to constitute a waiver of any other term or provision (or portion thereof) waived in any other instance. The failure by either party to enforce any rights hereunder will not be construed as a waiver of any rights of such party.

10.10.  Title and Headings. The titles and headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.

10.11.  Survival. Notwithstanding anything to the contrary contained herein, the provisions of Sections 4.4, 6, 7, 8, and 8.5 hereof will survive the expiration or termination of this Agreement.

Signature page follows

 

               14

IN WITNESS WHEREOF, each of the parties has signed this Amendment on the date opposite their signature below.

Date:  June 30, 2010	VCA ANTECH, INC. By:  /s/ Robert L. Antin Its:  Chairman of the Board, President and         Chief Executive Officer
Date: June 30, 2010	CONSULTANT /s/ Neil Tauber Neil Tauber

 

                  15

EX-10

Execution Copy

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”) is entered into effective as of June 28, 2010, by VCA Antech, Inc., a Delaware corporation (the “Company”), and Tomas W. Fuller, an individual (“Consultant”).

RECITALS

WHEREAS, Consultant is currently employed as Chief Financial Officer, Vice President and Secretary of the Company pursuant to an Amended and Restated Employment Agreement (the “Employment Agreement”) dated as of September 20, 2000, and amended as of November 27, 2001 and amended again effective January 1, 2009;

WHEREAS, Consultant has been an officer of the Company and a long service employee and the Company is highly dependent upon Consultant’s expertise and continued services;

WHEREAS, the Company desires to plan for the orderly transition of the duties and responsibilities of Consultant following such time as Consultant is no longer Chief Financial Officer, Vice President and Secretary of the Company and to protect certain valuable confidential and trade secret information obtained by Consultant during the course of his employment;

WHEREAS, the Company and Consultant desire that Consultant provide certain consulting services set forth under the terms of this Agreement; and

WHEREAS, terms not otherwise defined in this Agreement will have the meanings ascribed to them in the Employment Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the terms, covenants and conditions contained herein, the parties hereto agree as follows:

1. Consulting Services.

Following the effectiveness of Consultant’s resignation as Chief Financial Officer, Vice President and Secretary of the Company on or after January 1, 2013 other than for Good Reason, following a Change in Control or resulting from Consultant’s Disability (a “Qualifying Voluntary Termination”), he will continue to provide business consulting and advice to the Company as described herein.

2. Capacity and Duties.

2.1.      Consultant will continue to be an employee of the Company during the term of this Agreement.

2.2.      Subject to the limitations set forth in this Section 2, Consultant will, upon the request or direction of the Company’s Chief Executive Officer, provide business consulting services and advice with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses (the “Services”). The scope of Consultant’s Services will include, but is not necessarily limited to, transition services; consulting with the Company on the development and implementation of the Company’s business strategy; internal and public appearances to support the Company’s communications strategies with shareholders, veterinarians and other professional staff, employees, customers and industry partners; and providing other business consulting services and advice from time to time with respect to the operation of the Company’s animal hospital and veterinary laboratory businesses as reasonably requested by the Chief Executive Officer of the Company.

2.3.      Consultant will be available to provide the Services during normal business hours for up to a maximum of 16 hours per week for a maximum of 40 weeks per year, during the first full year of the Term (the “Service Commitment”). The Service Commitment will be a maximum of 12 hours per week and 40 weeks per year during the second year of the Term. The Service Commitment will be a maximum of 12 hours per week and 30 weeks per year during the third year of the Term. Consultant will provide the Services at a location mutually agreeable to Consultant and the Chief Executive Officer.

2.4.      The provision of Services in accordance with the Service Commitment is not intended to constitute a Separation from Service under Section 1.409A-1(h)(1) of the Treasury Regulations and the provisions of the Supplemental Executive Retirement Program entered into by the Company and Consultant.

2.5.      The terms of this Section 2 will not prevent Consultant 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, or from engaging in such other activities that do not conflict with the Company so long as he is able to fulfill his duties hereunder.

3. Term.

The term of this Agreement (the “Term”) will commence on the date of a Qualifying Voluntary Termination (the “Effective Date”) and will continue until the third anniversary thereof. Notwithstanding the foregoing, this Agreement is contingent on Consultant providing the Company, not less than six months before the Effective Date, with written notice of his intent to terminate his position as Chief Financial Officer, Vice President and Secretary of the Company and to commence performance of the Services under this Agreement.

4. Compensation.

4.1.      Consulting Compensation. As consideration for rendering the Services, the Company will pay to Consultant compensation (“Consulting Compensation”) as follows.

(a)       During each year of the Term, unless the Agreement is earlier terminated pursuant to Section 7, the Company will pay to Consultant annual

 

   2

compensation equal to the fixed percentage of Consultant’s Final Compensation that corresponds to such year in the following table:

First Year:	100% of Final Compensation
Second Year:	50% of Final Compensation
Third Year:	25% of Final Compensation

(b)       For purposes of this Agreement, “Final Compensation” means the higher of:

(i)        Consultant’s annual Base Salary immediately before the Effective Date (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans), plus the highest bonus earned by Executive with respect to services rendered during the four preceding full calendar years immediately before the Effective Date, or

(ii)       The average of Consultant’s annual Base Salary plus any bonus earned (before adjustments for elective deferrals or contributions to Company-sponsored employee benefit plans) with respect to services rendered during the two highest compensation years for the five-year period ending on the December 31^st immediately preceding the Effective Date.

“Final Compensation” does not include the grant or exercise of stock options and other equity-based compensation, benefits, perquisites, or any other non-cash compensation.

(c)       The Consulting Compensation will be paid in substantially equal periodic installments over the Term, in accordance with the Company’s payroll practices for senior executives, as consideration for his performance of the Services under this Agreement.

4.2. Benefits.

(a) Insurance.

(i)        During the Term of this Agreement Consultant will be an employee of the Company, and accordingly will be entitled to participate in all operative benefit and welfare plans of the Company then in effect, including medical, group life, disability benefits and other insurance plans and benefits, all on the same basis generally applicable to the employees and executive officers of the Company; provided, however, that the Company will provide to Consultant and family medical benefits (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy) at least as favorable as the level, type and basis of medical coverage provided to Consultant and as in effect immediately before the Effective Date.

 

      3

(ii)       Notwithstanding the foregoing, but subject to the proviso in paragraph (i), nothing contained in this Section 4.2(a) will, in any manner whatsoever, directly or indirectly, require or otherwise prohibit the Company from amending, modifying, curtailing, or discontinuing any employee benefit plan at any time. The Company agrees to take such steps as may be required to provide such coverage to Consultant without regard to the terms or provisions of any Company “plan” that require “full-time” or minimum periods of employment in excess of the employment contemplated by this Agreement. However, Company will not be under any obligation to amend or provide benefits pursuant to the terms of any Company plan to the extent that to do so would violate the terms of applicable law or result in prohibited discrimination in favor of Consultant. In such case, the Company will provide alternative benefits coverage that is substantially similar to the level of coverage provided under the terms of such Company plan or plans or as otherwise required under paragraph (i). Upon Consultant’s eligibility for Medicare (or a similar program), Consultant will have the option, but not the obligation, to enroll in Medicare (or such similar program). If Consultant or any eligible family member elects to enroll in Medicare (or a similar program), then the Company’s obligation hereunder to such enrolled person will be limited thereafter to providing Medicare supplementary coverage, Lloyds policy and Executive Edge Medical Reimbursement Insurance or substantially similar policies at least as favorable as the level, type and basis of medical benefits coverage provided to Consultant and as in effect immediately before the Effective Date, except to the extent that applicable law requires Medicare coverage to be secondary to the Company provided coverage.

(iii)      If the Company is unable to provide the medical benefits coverage described in Section 4.2(a)(i) through the Company-sponsored medical plans (including Executive Edge Medical Reimbursement Insurance or a substantially similar policy); then the Company shall secure similar individual health insurance policies providing comparable benefits for Consultant and his family. If the Company fails to secure such similar health insurance policies, then Consultant will be entitled to obtain similar individual health insurance policies providing comparable benefits for Consultant and his family, and the Company shall reimburse Consultant for the cost of such policies upon Consultant’s submission of proof of his prior payment of the premiums for such policies.

(b)       Automobile and Entertainment Expenses. During the Term the Company will reimburse Consultant for automobile expenses (costs of leasing, insurance, repair, maintenance and operation of such automobile), up to a maximum of $25,000 per annum, and the cost of entertainment provided by Consultant, in Consultant’s discretion, to the Company’s customers, vendors, employees and strategic partners.

 

       4

4.3.      Reimbursement. Consultant will be entitled to reimbursement from the Company for the reasonable expenses incurred in connection with the performance of the duties and obligations provided for in this Agreement. Reimbursement will be paid upon prompt presentation of expense statements or vouchers and such other supporting information as the Company may from time to time require.

4.4.      Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, upon the scheduled expiration of the Term of this Agreement, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

4.5.      Reimbursements and Provision of In-Kind Benefits. To the extent that this Agreement requires the Company to provide reimbursements of expenses or in-kind benefits following Consultant’s “Separation from Service” (as defined in Treas. Reg. § 1.409A-1(h)(1)) that are deemed to constitute taxable compensation to Consultant, the amount of any such expenses eligible for reimbursement, or in-kind benefits provided, during one calendar year will not affect the amount of such eligible expenses or in-kind benefits to be provided in any other calendar year, and Consultant’s right to such reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit. The reimbursement of such eligible expenses will be paid or reimbursed reasonably promptly, but not later than December 31 of the calendar year following the calendar year in which the expense was incurred.

4.6. Additional Section 409A Considerations.

(a)       The payments and benefits under this Agreement are intended to be exempt from the application of Section 409A of the Code. In the event any such payments hereunder may constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code, the payment of such amounts is intended to comply with Section 409A of the Code. To the extent applicable, this Agreement will be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Section 409A of the Code and related Department of Treasury guidance, the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the compensation and benefits payable under this Agreement from Section 409A of the Code and preserve the intended tax treatment of such compensation and benefits, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that no such amendments or adoption of other policies and procedures will reduce the amount of any compensation or benefit Consultant otherwise would be entitled to under this Agreement without the written consent of Consultant.

 

           5

(b)       This Agreement will be administered and interpreted to maximize the short-term deferral exception to Section 409A of the Code and Consultant is not permitted, directly or indirectly, to designate the taxable year of a payment made under this Agreement. The portion of any payment under this Agreement that is paid within the “short-term deferral period” as defined in Treas. Reg. § 1.409A-1(b)(4) will be treated as a short-term deferral and not aggregated with other plans or payments. Any other portion of the payment that does not meet the short-term deferral requirement will, to the maximum extent possible, be deemed to satisfy the exception under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) for involuntary separation pay and will not be aggregated with any other payment. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. Any amount that is paid as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or within the involuntary separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) will be treated as a separate payment. Payment dates provided for in this Agreement will be deemed to incorporate “grace periods” provided by Treas. Reg. § 1.409A-3(d).

(c)       In addition, notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any severance payments or benefits payable under Sections 4 or 7 hereof, will be paid to Consultant during the 6-month period following Consultant’s Separation from Service if the Company determines that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of Consultant’s death), the Company will pay Consultant a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Consultant during such period.

5. Trade Secrets.

Consultant will not at any time during the Term or 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 (“Trade Secrets”), 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 Consultant will prepare, use, construct, observe, possess or control, will be and remain the Company’s sole property. Consultant’s obligation under the preceding sentence will continue in effect after the end of Consultant’s employment with the Company and the obligations will be binding on Consultant’s assigns, heirs, executors, administrators, and other legal representatives.

 

               6

6. Return of Corporate Property and Trade Secrets.

Upon termination of this Agreement for any reason, Consultant, or his estate in the event of his death, will 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.

7. Termination of Employment.

7.1. Termination in Case of Death.

(a)       This Agreement and Consultant’s employment hereunder will terminate immediately upon the death of Consultant.

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.1, the Company will pay to Consultant’s designated beneficiary or, if none, his estate, on the Termination Date, a lump sum payment of an amount equal to all accrued and unpaid Consulting Compensation payable to Consultant by the Company with respect to that portion of the Term through the Termination Date (the “Accrued Compensation”) plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.1). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

7.2. Termination in Case of Disability.

(a)       If Consultant suffers a physical or mental disability that results in Consultant being unable to perform his duties hereunder for a 16-consecutive-week period, then the Board of Directors of the Company shall select a qualified physician to examine Consultant and review his physical and mental capacity. If such physician determines in good faith that such physical or mental disability renders Consultant incapable of performing his duties hereunder for a period of at least 16 consecutive weeks following the date of such physician’s written opinion, then, unless Consultant resumes the performance of his duties hereunder, Consultant’s employment shall terminate effective 16 weeks following the date of such physician’s written opinion. Notwithstanding the foregoing, Consultant will retain the right, without obligation, to resume the performance of his duties hereunder at any time before such termination, in which case his employment hereunder will continue.

 

                7

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.2, the Company shall pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.2); provided, however, such amount will be reduced by the fixed and determinable amount of any payments to be made to Consultant during the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) under any long-term disability insurance policy maintained by the Company for the benefit of Consultant pursuant to Section 4.2(a). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase the Common Stock of the Company that have been granted to Consultant and that would have vested during the 24 months following the Termination Date will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, that would have vested during the 24 months following the Termination Date will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award, and (ii) the Company will continue to provide to Consultant all other benefits referred to in Sections 4.2(a) and 4.2(b) hereof for the remaining scheduled Term (determined without regard to the termination of the Agreement under this Section 7.2) to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Post-Retirement Medical Benefits Coverage Agreement between the Company and Consultant effective as of December 27, 2007 (the “Medical Benefits Coverage Agreement”).

7.3. Termination by Consultant for Good Reason.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately for “Good Reason” upon written notice of termination delivered by Consultant to the Company within two years following the initial existence of one or more of the following conditions without Consultant’s consent:

(i)        The willful breach of any of the material obligations of the Company to Consultant under this Agreement, or

(ii)       The relocation of the office where Consultant is required to perform his duties to the Company to a location outside of Los Angeles County, California.

Provided, however, that Consultant must deliver written notice to the Company of the existence of the condition within 90 days of the condition’s initial existence, upon receipt of which notice the Company will have at least 30 days to remedy such condition, and if the Company does so remedy the condition then Consultant will not be entitled to terminate employment under this Section 7.3.

 

                    8

(b)       Upon termination of Consultant’s employment pursuant to this Section 7.3, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.3). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and the automobile expense reimbursements that would otherwise be payable to Consultant pursuant to Section 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.3), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.4. Termination by Consultant without Good Reason.

(a)       This Agreement will terminate immediately upon delivery to the Company of written notice of termination by Consultant without Good Reason.

(b)       Upon termination of this Agreement pursuant to this Section 7.4, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.5. Termination by the Company without Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon delivery to Consultant of written notice of termination by the Company, which will be deemed “without Cause” unless termination is expressly stated to be pursuant to any of Section 7.1, 7.2 or 7.6.

(b)       Upon termination of this Consultant’s employment pursuant to this Section 7.5, the Company will pay to Consultant, on the Termination Date, a lump sum payment of an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the remaining scheduled Term (determined without regard to the termination of this Agreement under this Section 7.5). In addition to the foregoing, and notwithstanding the provisions of any other agreement to the contrary, (i) all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable on the

 

                    9

Termination Date and all other equity awards that have been awarded to Consultant, including restricted awards, will become fully vested on the Termination Date and no longer subject to restrictions on transfer (except for performance-based awards, which shall vest only upon satisfaction of the applicable performance goals) and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award; and (ii) the Company will continue to provide to Consultant all other benefits that would otherwise be payable to Consultant pursuant to Section 4.2(a) and the automobile expense reimbursements that would otherwise be payable to Consultant pursuant to Section 4.2(b) hereof for the remaining Term (determined without regard to the termination of the Agreement pursuant to this Section 7.5), to the extent permitted by applicable laws and each governing contract, provided that medical benefits will continue solely pursuant to the Medical Benefits Coverage Agreement.

7.6. Termination by the Company for Cause.

(a)       This Agreement and the employment of Consultant hereunder will terminate immediately upon written notice delivered by the Company to Consultant of termination for “Cause” by reason of Consultant’s conviction (including any plea of guilty) of (i) any felony involving the embezzlement, theft or misappropriation of monies or other property, of the Company or otherwise; or (ii) any crime of moral turpitude.

(b)       Upon termination of this Agreement pursuant to this Section 7.6, the Company will pay to Consultant, on the Termination Date, a lump sum payment of the Accrued Compensation. The Company will have no further obligation to Consultant pursuant to this Agreement.

7.7.      Termination Date. For purposes of this Agreement, “Termination Date” means that date on which Consultant’s employment is terminated pursuant to this Section 7.

8. Change in Control.

8.1.      Relief of Consultant Obligations. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control (as defined in Section 8.4) of the Company (i) if the Change in Control occurs prior to the Effective Date, this Agreement will terminate and Consultant will not be obligated to provide any Services to the Company or its successor hereunder, and (ii) if the Change in Control occurs after the Effective Date, Consultant’s employment with the Company will terminate and all of Consultant’s duties and obligations as set forth in Sections 1 and 2 will cease.

8.2.      Severance Payments. Notwithstanding anything herein to the contrary, upon the occurrence during the Term of a Change in Control of the Company the Company, in lieu of any payment or benefit otherwise due under Section 7 hereof, will pay to Consultant in a lump sum on the fifth day following the occurrence of the Change in Control, which for purposes of this Agreement will be the Termination Date, an amount equal to the Accrued Compensation plus the amount Consultant would have earned as Consulting Compensation during the

 

                10

remaining scheduled Term (determined without regard to the termination of this Agreement under Section 8.1).

8.3.      Vesting of Equity Awards. Notwithstanding the provisions of any other agreement to the contrary, immediately prior to the occurrence of a Change in Control of the Company during the Term, all options to purchase Common Stock of the Company that have been granted to Consultant by the Company will become immediately exercisable and all restricted awards or other equity awards that have been awarded to Consultant will become fully vested and no longer subject to restrictions on transfer and, notwithstanding any other agreement to the contrary, will remain exercisable for the full term of each such option or award.

8.4.      Change in Control Definition. For purposes of this Section 8, a “Change in Control” of the Company will be deemed to have occurred if (a) there is consummated (i) any consolidation or merger of the Company into or with another “person” (as such term is used in Sections 3(a)(9), 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 (ii) 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; (b) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; (c) any person becomes 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.

8.5.      Excess Parachute Payments. Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Consultant (including any payment or benefit received in connection with a Change in Control or the termination of the Consultant’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 8 of this Agreement, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Tax Payment provided under the second paragraph of Section 9.5 of the Employment Agreement, as in effect on June 28, 2010, will be paid to Consultant concurrently with the severance payment referred to in Section Error! Reference source not found. above. Such Tax Payment will be determined and paid without regard to the fact that the Employment Agreement has expired at the time such Change in Control occurs.

 

                      11

(a)       For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Consultant shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of independent accountants of nationally recognized standing (“Accounting Firm”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Accounting Firm, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, and (iii) the value of any non cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accounting Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

(b)       If applicable, the Consultant and the Company will each provide the Accounting Firm access to and copies of any books, records and documents in their respective possession, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 8.5. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 8.5 will be borne by the Company.

9. Injunctive Relief.

Consultant hereby recognizes, acknowledges and agrees that in the event of any breach by Consultant 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. Consultant 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 Consultant of any of the covenants, agreements, duties or obligations hereunder, the Company or its subsidiaries will 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 Consultant 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 8.5 will 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 Consultant at law, in equity, by statute or otherwise arising out of, in connection with or resulting from the breach by Consultant of any of his covenants, agreements, duties or obligations hereunder.

 

            12

10. Miscellaneous.

10.1.    Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and cannot be changed or terminated except in writing signed by both Consultant and the Company.

10.2.    Limited Liabilities. All liabilities incurred by Consultant in his capacity as an employee hereunder will be incurred for the account of the Company, and Consultant will not be personally liable therefor. Consultant will 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 will, and hereby agrees to, indemnify, defend and hold Consultant harmless from and against any and all damages, 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 Agreement on the part of Consultant.

10.3.    Notices. All notices, requests and other communications (collectively, “Notices”) given pursuant to this Agreement must be in writing, and must 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:

If to the Company:	VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Attention: Board of Directors Facsimile No.: (310) 571-6701
If to Consultant:	Tomas W. Fuller c/o VCA Antech, Inc. 12401 West Olympic Boulevard Los Angeles, CA 90064-1022 Facsimile No.: (310) 571-6701

10.4.    Tax Withholding. The Company may deduct from any payments hereunder amounts sufficient to cover applicable federal, state and local tax withholdings and any other amounts that the Company is required to withhold by applicable law.

10.5.    Governing Law. This Agreement is governed by and to be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.

10.6.    Counterparts. This Agreement may be executed in any number of counterparts, each of which will be considered to be an original, and all such executed counterparts will together constitute one Agreement.

 

                    13

10.7.    Severable Provisions. The provisions of this Agreement are severable, and if any one or more provisions are determined to be judicially unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable.

10.8.    Successors and Assigns. This Agreement and all obligations and benefits of Consultant and the Company hereunder will bind and inure to the benefit of Consultant and the Company, their respective affiliates, and their respective successors and assigns.

10.9.    Amendments and Waivers. No amendment or waiver of any term or provision of this Agreement will be effective unless made in writing. Any written amendment or waiver will be effective only in the instance given and then only with respect to the specific term or provision (or portion thereof) of this Agreement to which it expressly relates, and will not be deemed or construed to constitute a waiver of any other term or provision (or portion thereof) waived in any other instance. The failure by either party to enforce any rights hereunder will not be construed as a waiver of any rights of such party.

10.10.  Title and Headings. The titles and headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.

10.11.  Survival. Notwithstanding anything to the contrary contained herein, the provisions of Sections 4.4, 6, 7, 8, and 8.5 hereof will survive the expiration or termination of this Agreement.

Signature page follows

 

                     14

IN WITNESS WHEREOF, each of the parties has signed this Amendment on the date opposite their signature below.

Date: June 30, 2010	VCA ANTECH, INC. By: /s/ Robert L. Antin Its:  Chairman of the Board, President and         Chief Executive Officer
Date: June 30, 2010	CONSULTANT /s/ Tomas W. Fuller Tomas W. Fuller

 

                      15