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Exhibit
10.1
ASSIGNMENT AND ASSUMPTION
AGREEMENT
This ASSIGNMENT AND
ASSUMPTION AGREEMENT (“Agreement”), is entered into as
of January 13, 2005, by and between PETCO Holding Co. (“New
PETCO”) and PETCO Animal Supplies, Inc. (“Old
PETCO”).
RECITALS
WHEREAS, New PETCO and Old
PETCO are parties to that certain Agreement and Plan of
Reorganization (the “Merger Agreement”) dated on or
about the date hereof; and
WHEREAS, pursuant to the
Merger Agreement, Old PETCO and New PETCO have agreed that New
PETCO will assume and agree to perform all obligations of Old PETCO
pursuant to Old PETCO’s stock option plans (collectively, the
“Plans”), stockholders agreements and other agreements
listed on Schedule A hereto, the various stock option agreements
pursuant to the Plans, and each outstanding stock option granted
thereunder (collectively, the “Assumed
Agreements”).
NOW, THEREFORE, in
consideration of the premises and the covenants and agreements
contained in this Agreement, and intending to be legally bound
hereby, Old PETCO and New PETCO hereby agree as follows:
ASSIGNMENT AND
ASSUMPTION
1. Old PETCO hereby assigns
to New PETCO all of its rights and obligations under the Assumed
Agreements.
2. New PETCO hereby assumes
all of the rights and obligations of Old PETCO under the Assumed
Agreements, and agrees to abide by and perform all terms, covenants
and conditions of Old PETCO under such Assumed Agreements. In
addition, New PETCO agrees that to the extent that any of the
Assumed Agreements contains a provision with respect to a
“change of control” or other similar such occurrence of
Old PETCO, that such provision shall apply in the event of a
“change of control” or other similar such occurrence of
New PETCO.
3. In consideration of the
assumption by New PETCO of all of the rights and obligations of Old
PETCO under the Assumed Agreements, Old PETCO agrees to pay (i) all
expenses incurred by New PETCO in connection with the assumption of
the Assumed Agreements pursuant to this Agreement and (ii) all
expenses incurred by New PETCO in connection with the registration
on Form S-8 of shares of common stock of New PETCO to the extent
required in connection with the Plans and Old PETCO’s 401(k)
Plan (PETCO Animal Supplies 401(k) pl
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