Exhibit 10.1
RELEASE AND SEPARATION AGREEMENT
Xxxx Xxxxxxxxx
0000 X. Xxxxx Xxxx, Xxxxx 00X
Xxxxxxx Xxxxx, XX 00000
Re: Release and Separation Agreement.
Dear Xxxx:
This will confirm the agreements between you and PetMed Express, Inc.
(the "Company") regarding the separation of your employment with the
Company. This letter agreement (the "Agreement") amends and
supersedes all agreements (including, without limitation, all
employment agreements and amendments thereto), negotiations and
understandings of whatever nature between you and the Company (whether
written or oral), except as otherwise specifically provided herein.
1. Separation. Your employment with the Company terminated as
of May 31, 2001 (hereinafter the "Termination Date").
2. Separation Allowance. Under your employment agreement with
the Company, you agree to accept, and you shall be entitled to, one-year
base salary of $120,000 (minus applicable taxes and withholding). You
agree that the Company will pay this amount to you the 8th day after the
execution of this Agreement (provided you have not timely revoked this
Agreement, that you have delivered to the Company your completed
statement of non-revocation, and that you have complied with all other
applicable terms and conditions of this Agreement). Immediately upon
your execution of this Agreement, you shall return to the Company its
check number 1544 in the amount of $92,467.55. You represent and
warrant that you have not deposited, cashed or otherwise negotiated
that check and that you will not do so.
3. Options. You agree that all the options granted to you
pursuant to any agreement or arrangement whatsoever, whether vested or
unvested, are hereby cancelled.
4. Benefits. You agree that all your benefits with the Company,
including, but not limited to, health insurance, shall be cancelled on
October 31, 2001.
5. Consulting Services. You agree to provide consulting
services to the Company, through SBS, Inc., which you are an officer,
on financial matters until March 31, 2002 on an as needed basis. You
will be available to the Company by phone, facsimile or e-mail to
answer any questions on financial matters the Company may have. SBS,
Inc. will be compensated a total of $25,000 for the consulting, which
will be paid to SBS, Inc., in five monthly installments of $5,000
starting thirty (30) days after the execution date of this Agreement
(provided you have not timely revoked this Agreement, that you have
delivered to the Company your completed statement of non-revocation,
and that you have complied with all other applicable terms and
conditions of this Agreement).
6. Release. In consideration for the Company's agreement
embodied herein, including, but not limited to, Paragraph 2 above, you
and your heirs, assigns, agents, attorneys, executors, administrators
and representatives hereby release the Company, its past and present
successors, predecessors, assigns, subsidiaries, affiliates, owners,
employees, officers, directors, attorneys, controlling persons,
representatives and agents (hereinafter the "Releasees") from any and
all claims, demands and causes of action of whatever nature, whether
known or unknown, accrued or not accrued, liquidated or unliquidated,
that you ever had, now have, may have or claim to have against the
Company or any other Releasee directly or indirectly relating to,
concerning or arising out of your employment with the Company or the
termination of your employment with the Company; provided, however,
that we agree that you are not waiving or releasing the Company from
any of its obligations under this Agreement or from any rights to
indemnification provided by law or any indemnification you may be
entitled to in accordance with the Company's Articles of Incorporation
or Bylaws. You also hereby waive and release forever any right to
seek reinstatement, employment or re-employment by the Company and you
agree not to xxx or join in any suit against the Company for any
claim, including, without limitation, those described herein. You
also agree not to make or publish disparaging remarks about any of the
Releasees.
Exhibit 10.1 - Pg. 1
In consideration for your agreement embodied herein, including,
but not limited to, Paragraph 2 above, the Company and its assigns,
successors, predecessors, subsidiaries and affiliates hereby release
you and your heirs, assigns, attorneys, executors, administrators and
representatives from any and all claims, demands and causes of action
of whatever nature, whether known or unknown, accrued or not accrued,
liquidated or unliquidated, that the Company ever had, now has, may
have or claims to have against you directly or indirectly relating to,
concerning or arising out of the termination of your employment with
the Company; provided, however, that you agree that the Company is not
waiving or releasing you from any of the Company rights, or any of
your obligations, under this Agreement.
7. Costs and Attorney's Fees. Each party shall bear its own
attorney's fees, costs and expenses through the date of this
Agreement. You acknowledge and agree that you are not, and shall not
be deemed to be, a "prevailing party" under any contract, statute,
rule, regulation, ordinance or other provision for any purpose
whatsoever.
8. Consultation With an Attorney. By your signature below, you
acknowledge that you are aware of your right to consult an attorney
prior to entering into this Agreement, that you have been advised in
writing to consult your own attorney prior to entering into this
Agreement, and that you were afforded and had sufficient time and
opportunity to undertake such consultation, if desired, prior to
entering into this Agreement.
9. Confidential Information. You hereby covenant and agree
that during the course of your employment with PetMed Express, Inc.,
you came into contact with, and had access to, information that is the
property of PetMed Express, Inc. Such information includes, but is
not limited to, confidential client information, and proprietary
business information and/or trade secrets, all of which information
you acknowledge and agree is highly confidential and not generally
known or available to the public. You agree that you have not and
will not utilize or disclose any of the above described confidential
information to any person(s) or entities for any reason or purpose
whatsoever.
10. Non-Admission. Neither this Agreement, nor anything
contained herein, is to be construed as an admission by PetMed
Express, Inc. or you or evidence of any liability, wrongdoing, or
unlawful conduct whatsoever.
11. Governing Law. You agree that this Agreement shall be
governed by and construed in accordance with the laws of the State of
Florida, without regard to its choice of law provisions or reference
to any other state laws. You further agree and acknowledge that you
have carefully reviewed this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting parties shall not be employed in the
interpretation of this Agreement or any amendment or exhibit hereto.
12. Period of Consideration. By your signature below, you
acknowledge that PetMed Express, Inc. complied with the ADEA by giving
you a period of at least twenty-one (21) days from the date that this
Agreement was first provided to you to consider this Agreement and to
decide whether to accept it. You further acknowledge that no
representative of PetMed Express, Inc. ever stated or implied that you
had less than twenty-one (21) days to consider this Agreement. You
also acknowledge that, to the extent you decided to sign this
Agreement prior to the expiration of the full twenty-one (21) day
period, such decision was knowing and voluntary on your part and was
in no way coerced by PetMed Express, Inc. To the extent any changes
were made in this Agreement as a result of negotiations taking place
after the date this Agreement was provided to you, you and PetMed
Express, Inc. agree that such changes, whether material or not, did
not restart the running of the period of twenty-one (21) days to
consider this Agreement required by the ADEA.
13. Right to Revoke Agreement. You understand that for
seven (7) calendar days after you sign this Agreement you have the
right to revoke it in writing, and this Agreement shall not become
effective and enforceable until after the passage of this seven day
period without you having revoked it in writing. This Agreement may
not be revoked after the seven day period. You understand and agree
that you will be entitled to the consideration provided by this
Agreement only if you sign and return the Statement of Non-Revocation
attached hereto as Exhibit A (which shall be incorporated fully herein
by reference) confirming that you do not revoke this Agreement.
Exhibit 10.1 - Pg. 2
14. Entirety of Agreement and Notice. This Agreement
constitutes a single integrated contract expressing the entire
agreement and understanding of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter
hereof. There are no other agreements, written or oral, express or
implied, between the parties hereto, concerning the subject matter
hereof, except as set forth herein. This Agreement may be amended or
modified only by a written agreement of the parties signed by each of
them, and shall be binding upon and inure to the benefit of the
parties and successors, personal representatives and assigns. No
representation, affirmation of fact, course of prior dealings, promise
or condition in connection herewith not incorporated herein shall be
binding on the parties. Notices that are required or permitted
hereunder shall be given by delivery to a courier service providing
next day delivery and proof of receipt to each party at its most
recent address or to such other address of a party as to which that
party shall notify the other party in writing.
15. Dismissal of Action with Prejudice. Immediately
upon the expiration of the revocation period set forth in paragraph 13
of this Agreement, and provided you have not timely revoked this
Agreement in writing, the parties shall voluntarily dismiss the action
styled PetMed Express, Inc. v. Xxxx Xxxxxxxxx, In the Circuit Court of
the 17th Judicial Circuit In and For Broward County, Florida, Case No.
01-016035 CACE (18) in its entirety (including your counterclaim) with
prejudice and on the merits, with each party to that action to bear
their respective attorney's fees, costs and expenses.
16. Sole Entitlement. You acknowledge and agree that
no monies or benefits are owing to you by PetMed except as
specifically set forth in this Agreement.
17. Understanding of Agreement. You acknowledge and
agree that you have carefully read this Agreement, that you have had
sufficient time and opportunity to consider its terms and to obtain
legal advice, if desired, that you fully understand this Agreement's
final and binding effect, that the only promises made to you to sign
this Agreement are those stated above, and that you are signing this
Agreement voluntarily.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of October 31, 2001.
EMPLOYEE: PETMED EXPRESS, INC.:
By: /s/ Xxxx Xxxxxxxxx By: /s/ Mendo Akdag
---------------------------- -------------------------
XXXX XXXXXXXXX MENDO AKDAG, as CEO
of PetMed Express, Inc.
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------
WITNESS
Exhibit 10.1 - Pg. 3
EXHIBIT A
STATEMENT OF NON-REVOCATION
AS TO THE DATE SHOWN ON THIS FORM
By signing below, I, XXXX XXXXXXXXX, social security number, 227-
64-9027 hereby verify that I have chosen not to revoke my agreement
to, and execution of, the Release and Separation Agreement (the
"Agreement") between me and PetMed Express, Inc. My signature below
confirms my continued and renewed agreement to the terms of that
Agreement, including my release and waiver of any and all claims
relating to my employment with PetMed Express, Inc. and/or the
termination of that employment.
/s/ Xxxx Xxxxxxxxx 11/13/01
-----------------------------
XXXX XXXXXXXXX (Signature)* (Date)*
* DO NOT SIGN, DATE OR RETURN THIS DOCUMENT UNTIL
THE EIGHTH (8TH) DAY AFTER YOU SIGNED THE RELEASE
AND SEPARATION AGREEMENT.
Exhibit 10.1 - Pg. 4
