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Exhibit 10.2 SEPARATION AGREEMENT
THIS AGREEMENT (this "
Agreement ") is made and entered into as of the 25th day of
September, 2008, by and among PET DRX CORPORATION, a Delaware
corporation (" Pet DRx "), XLNT VETERINARY CARE, INC. ("
XLNT ," and collectively, Pet DRx and XLNT are referred to
as the " Company "), and ROBERT WALLACE (" Executive
"). BACKGROUND Executive was
employed by the Company through September 25, 2008, and was a
party to that certain employment agreement dated July 25, 2007
between Executive and XLNT (the " Employment Agreement ").
Effective September 25, 2008, Executive voluntary resigned. As
of September 25, 2008, Executive also resigned from all positions
he held with the Company, including his position as a member of the
Boards of Directors of the Company. The Company has accepted
Executive’s resignation and waived the requirement of thirty
(30) days’ advance notice. In connection with
Executive’s termination of employment and the execution of
this Agreement, the Company agrees to provide Executive with the
payments and benefits described in Exhibit A to this
Agreement and the parties desire that Executive shall serve as a
consultant to Pet DRx for a ninety (90) day term, commencing
September 25, 2008, pursuant to the Consulting Agreement
attached as Exhibit B to this Agreement (the " Consulting
Agreement "). AGREEMENT
In consideration for the mutual promises contained in this
Agreement, the Company and Executive agree as follows: 1.
Employment Termination .
(a) General Terms . The
Company and Executive agree that:
(1) Executive
ceased to be the Chief Executive Officer of Pet DRx as of
September 25, 2008;
(2) Executive’s
last day of employment with the Company was September 25, 2008
(the " Resignation Date "); and
(3) Executive
hereby resigns, effective as of the date he signs this Agreement,
as a member of the Board of Directors of the Company, and from any
and all titles and positions with the Company. Executive agrees to
tender and memorialize his resignation from any and all such
positions in any other manner and form as Pet DRx may reasonably
request. (b) Satisfaction of
Obligations . The payments, benefits and other consideration
provided by the Company under this Agreement are in full and final
satisfaction of all obligations that the Company has to Executive.
Without limiting the foregoing, these payments and benefits replace
any and all obligations of the Company under any and all letters,
agreements, understandings, plans and policies, relating to
Executive’s employment, service as a director, and severance.
Executive agrees that the payments and benefits described in
Exhibit A
and the Consulting Agreement attached as Exhibit B
are adequate consideration for (i) the agreements he makes in
this Agreement, and (ii) the releases he gives pursuant to
this Agreement. (c) No Other
Payments or Benefits . Executive shall not be eligible for, and
he will not receive, any payments or benefits from the Company, or
under any plan, agreement, or arrangement in which Executive or the
Company are a party or participate which are not expressly set
forth in this Agreement. 2. Payments and Benefits Following
Executive’s Resignation Date .
(a) General Conditions .
The Company shall provide to Executive the payments and benefits
described in Exhibit A to this Agreement and under the
Consulting Agreement when required by Exhibit A and the
Consulting Agreement, respectively. This Agreement shall become
effective as of September 25, 2008 (the " Effective
Date "). (b) Taxes .
Executive is solely responsible for paying any and all taxes he
owes on amounts he receives or that are paid on his behalf under
the terms of this Agreement. The preceding provision does not, and
shall not be construed to make Executive responsible for taxes that
are imposed on any person or entity other than himself. The Company
will withhold all taxes that it determines are legally required to
be withheld. 3. Cooperation .
(a) Transition .
Executive shall cooperate with the Company in ensuring an orderly
transition of matters handled by Executive. Executive shall sign
any documents and do anything that is reasonably necessary in the
future to implement his agreements in this Agreement.
(b) Cooperation as a
Witness . Executive shall cooperate with the Company as a
witness in all matters about which he has knowledge as a result of
his prior positions with the Company if the Company requests his
testimony. To the extent practicable and within the control of the
Company, the Company will use reasonable efforts to schedule the
timing of his participation in any such witness activities in a
reasonable manner to take into account his then-current employment,
and will pay the reasonable documented out-of-pocket expenses that
the Company pre-approves and that Executive incurs for travel
required by the Company with respect to those activities. 4.
General Release of Claims by Executive .
(a) Release . As a
material inducement for the Company to enter into this Agreement,
Executive hereby forever, irrevocably and unconditionally, releases
and discharges the Company and other Released Parties (as defined
below) from any and all charges, claims, liabilities, agreements,
damages, causes of action, suits, costs, losses, debts and expenses
(including attorneys’ fees and costs actually incurred) of
any nature whatsoever, known or unknown, which he now has, or
claims to have, or which Executive at any time had, or claimed to
have, or which Executive at any time hereafter may have, or claim
to have, against the Company, in each case as to acts or omissions
occurring up to and including the date Executive signs his
Agreement, including, without limitation, any claim of breach of
fiduciary duty, rights arising out of alleged violations of any
contracts, express or implied, any covenant of good faith and fair
dealing,
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express or implied, or any tort, or any legal restrictions on
the Company’s right to terminate employees, or any federal,
state or other governmental statute, regulation, or ordinance,
except any claims Executive may have under the Age Discrimination
in Employment Act (all such matters hereby released, collectively
referred to as " Claims "). CIVIL CODE SECTION 1542
WAIVER. As a further consideration and inducement for this
Agreement, Executive hereby waives any and all rights under
Section 1542 of the California Civil Code or any similar
state, local, or federal law, statute, rule, order or regulation
which the Employee may have. Section 1542 provides: "A general
release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor." The parties expressly agree that the
release in Subsection (a) shall extend and apply to all
unknown, unsuspected and unanticipated injuries and damages as well
as those that are now disclosed. This release will not apply to any
claim for payments or benefits Executive may have under the terms
of this Agreement or the Consulting Agreement, any indemnification
or executive insurance protection rights or benefits that he may
have, now or in the future, with regard to his activities on or
before his Resignation Date as an employee, officer, director or
committee member for either of the Company or any Released Party,
unpaid claims for benefits, if any, that are payable under the
Company’s group health plan.
(b) Released Parties .
As used in this Agreement, the " Released Parties " are the
Company and all of its related companies, partnerships or joint
ventures, including but not limited to, direct and indirect parent
and subsidiary companies, and their predecessors and successors;
and, with regard to each of those entities, except for Executive,
all of its past and present employees, officers, directors,
stockholders, owners, representatives, assigns, attorneys, agents,
insurers, employee benefit programs (and the trustees,
administrators, fiduciaries and insurers of these programs) and any
other persons acting by, through, under or in concert with any of
the persons or entities listed in this subsection. Executive
understands that this release covers him and anyone who might have
a claim through him or because of him, such as a past, current or
future spouse, his family, heirs, executors, representatives,
agents and their successors and assigns.
(c) No Lawsuits .
Executive has not filed or caused to be filed any lawsuit,
complaint or charge with respect to any Claim he is releasing in
this Agreement. Executive agrees never to institute, or participate
in any action against any of the Releasees with respect to any
Claim released by this Agreement, except as required by subpoena,
court order, or other compulsory process and except that he may
participate in an investigation or proceeding conducted by an
agency of the United States government or of any state. Executive
has not assigned or transferred any Claim he is releasing, nor has
he purported to do so. Notwithstanding any language herein to the
contrary, Executive understands that nothing in this Release
prohibits Executive from filing or pursuing a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC") or a claim with the National Labor Relations Board
("NLRB"); provided that, by signing this Agreement, Executive
agrees to waive and relinquish any personal or monetary gain that
would otherwise result from such EEOC or NLRB claim.
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5. Release of Claims by the Company .
(a) The Company’s
Release of Claims . The Company hereby irrevocably releases and
discharges Executive from any and all charges, claims, liabilities,
agreements, damages, causes of action, suits, costs, losses, debts
and expenses (including attorneys’ fees and costs actually
incurred) of any nature whatsoever, known or unknown, which the
Company now has, or claims to have, or which the Company at any
time had, or claimed to have, or which the Company at any time
hereinafter may have, or claim to have, against Executive, in each
case as to acts or omissions by Executive occurring up to the
Resignation Date, except for any claim based on breach of fiduciary
duty, duty of loyalty or duty of care, or fraud, theft or
intentional misconduct, or any act that is determined to be a
criminal act under any law (the " Company’s Claims ").
(b) No Lawsuits by the
Company . The Company has not filed or caused to be filed any
lawsuit, complaint or charge with respect to any Company’s
Claims it is releasing in this Agreement. The Company agrees never
to institute, pursue, or participate in any action against
Executive with respect to any Company’s Claims released by
this Agreement, except as required by subpoena, court order or
other compulsory process and except that the Company may
participate in an investigation or proceeding conducted by an
agency of the United States Government or of any state. The Company
has not assigned or transferred any Company’s Claim it is
releasing, nor has it purported to do so. 6. Miscellaneous
Provisions . (a)
Binding Agreement . This Agreement is final and binding.
Executive has carefully read and fully understands all of the
provisions of this Agreement.
(b) Entire Agreement .
This Agreement and the attached Exhibits form the entire agreement
between the Company and E
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