EXHIBIT 10.1


 





 


EMPLOYMENT TERMINATION AND GENERAL RELEASE
AGREEMENT 


 


This EMPLOYMENT
TERMINATION AND GENERAL RELEASE AGREEMENT (this “Agreement”) is entered into and shall be effective as of
February 24, 2012 (“Effective Date”), among VITACOST.COM, INC., a Delaware corporation (the “Company”)
and STEPHEN MARKERT (“Employee”).


RECITALS


WHEREAS,
the Company and Employee are parties to that certain Employment Agreement (the “Original Agreement”) effective
as of October 19, 2010, by and between the Company and Employee; and


WHEREAS,
the Company and Employee now wish to set forth in this Agreement all of their respective rights and obligations resulting from
the termination of Employee’s employment by the Company and the termination of the Employment Agreement. Capitalized terms
used herein and not otherwise defined shall have the meaning as set forth in the Agreement


NOW, THEREFORE,
in consideration of the mutual promises and covenants between the Parties, the sufficiency of which is hereby acknowledged, the
Company and Employee hereby covenant and agree as follows:


AGREEMENT


1.Termination
of Employment. Effective as of February 24, 2012 (the “Termination Date”), the Employee’s employment
as interim Chief Financial Officer of the Company, is hereby terminated pursuant to Section 6(a)(iv) of the Employment Agreement.
In addition, except as otherwise set forth in this Agreement, effective as of the Termination Date, the Employment Agreement is
hereby terminated and the Employee shall no longer have any rights and/or benefits thereunder. 


2.Severance
Benefits.In exchange for the promises contained in this Agreement, subject to (i) the receipt of a full and unconditional
release from the Employee in form and substance acceptable to the Company within thirty (30) days following the Termination Date
and the expiration of any revocation period applicable thereto; and (ii) any amounts owed by the Employee to the Company under
any contract, agreement or loan document entered into after the date hereof (including, but not limited to, loans made by the Company
to the Employee), the Company shall pay and provide to the Employee, and the Employee shall be entitled to receive, a lump sum
payment in an amount equal to $225,000 (the “Severance Amounts”).


3.Tax
Consequences of Payments. All amounts payable to Employee under this Agreement shall be subject
to such withholdings and deductions by the Company as are required by law. 


4.Waiver
of Reinstatement/Re-Employment.  Employee agrees and recognizes that Employee’s employment relationship with Company
has been permanently and irrevocably dissolved. Employee expressly waives reinstatement, re-employment and/or claim of right to
employment by Company whatsoever, and agrees that Employee does not now and will not in the future seek re-employment or independent
contractor status with Company. 



    	 



    	 	



    
5.Release.
Employee, on Employee’s behalf and on behalf of Employee’s successors, assigns, agents, heirs, executors, personal
representatives, trustees and legal representatives, for good and valuable consideration as set forth in paragraph 1 herein, hereby
voluntarily and irrevocably releases and forever discharges the Company and any and all related entities, subsidiaries, affiliates,
subdivisions, as well as their respective current and former directors, officers, members, shareholders, agents, supervisors,
employees, attorneys, predecessors or successors in interest, assigns, insurers or other representatives, both in their official
and individual capacities (collectively referred to herein as the “Releasees”), from and against any and all
claims, obligations, debts, liabilities, demands, or causes of action of any kind whatsoever (all collectively referred to herein
as the “disputes”), including but not limited to, any disputes arising out of Employee’s employment and
separation from Employee’s employment with the Company, including any claims for severance or ownership of equity in any
Releasee. Employee expressly acknowledges and agrees that this release acquits, discharges, and releases the Releasees from any
and all claims or disputes Employee has or believes Employee may have against the Releasees, arising under any federal, state,
local or foreign statute or regulation, including, without limitation, those relating to unfair or discriminatory employment practices
or wage and hour or wage collection laws, including but not limited to, Title VII of the Civil Rights Act of 1964, as amended,
the Americans With Disabilities Act, as amended, the Equal Pay Act, the Employee Retirement Income Security Act of 1974, the Consolidated
Omnibus Budget Reconciliation Act of 1985, the Internal Revenue Code, the Family and Medical Leave Act, the Workers Adjustment
and Retraining Act, federal and state whistleblower laws, (and any and all amendments to any and all of the foregoing laws), and
any other federal or state law or local ordinance dealing with employment compensation, discrimination, retaliation or wrongful
discharge. Employee also agrees that this release includes claims based on theories of contract or common law, including, but
not limited to, breach of oral, written and/or implied contract, breach of an implied covenant of good faith and fair dealing,
wrongful discharge under any theory, including for lack of good cause, in violation of public policy, and constructive discharge,
intentional and negligent infliction of emotional distress, negligent hiring, retention and supervision, assault, battery, negligence,
misrepresentation or fraud of any kind, duress, breach of fiduciary or other duty, invasion of privacy, defamation, and interference
with contract and/or prospective economic advantage. Employee understands that this list is not intended to be exhaustive but
merely illustrative. 


Employee, who is over the
age of 40, has been advised, pursuant to the Older Workers Benefit Protective Act (“OWBPA”), that by signing
this release Employee is specifically waiving any claims Employee might have which have accrued prior to the execution date of
this release under the Age Discrimination in Employment Act of 1967 (“ADEA”). Employee acknowledges, represents
and agrees that this release shall result in a waiver and release of any rights Employee has under the ADEA, and Employee acknowledges,
represents and agrees that Employee understands Employee’s rights under the OWBPA, including but not limited to, Employee’s
right to consider this release for a period of twenty-one (21) days after Employee’s receipt of the release and (7) days
to revoke it after Employee signs this Agreement. Employee acknowledges that by releasing any such claims under the ADEA, in
addition to the other claims set forth in this Agreement, that Employee so releases and waives these claims in exchange for the
valuable consideration referred to above. However, the rights or claims under the ADEA which may arise after the date of the Agreement
shall not be deemed waived by the Release.



    	 



    	 	



    



 


6.Covenant
Not to Sue. Employee represents and warrants that Employee has not assigned or transferred or purported to assign or transfer
any claim against the Releasees, and is fully entitled to release the same, and Employee has not currently filed any lawsuits or
actions with any federal, state, or local court against the Company and agrees not to sue the Company in connection with any of
the matters released under Section 5 above. Employee agrees not to accept, recover or receive any monetary damages or any other
form of relief which may arise out of or in connection with any administrative remedies which may be filed with or pursued independently
by any governmental agency or agencies, whether federal, state or local. Employee agrees not to testify for, appear on behalf of,
or otherwise assist in any way any individual, company, or agency in any claim against the Company, except, unless, and only pursuant
to a lawful subpoena issued to Employee. If such a subpoena is issued, Employee will immediately notify the Company and provide
it with a copy of the subpoena. This Agreement does not prohibit Employee from filing a charge with a government agency, but this
Agreement does release any claim which Employee has or may have for monetary relief, reinstatement, or for any other remedy for
Employee personally, arising out of any proceeding before any government agency or court which has otherwise been specifically
released hereunder. If any agency or court should take jurisdiction over any matter in which Employee has or may have any personal
interest, whether initiated by Employee or otherwise, Employee will promptly inform that agency or court that this Agreement constitutes
a full and final settlement by Employee of all claims released under this Agreement. Thus, Employee understands and agrees that
this Agreement constitutes a full and final bar to any and all claims of any type that Employee now has against the Company, of
and from any and all actions, causes of action, damages or demands of whatever name or nature arising out of any and all incidents
or matters which have arisen or may arise from the beginning of time to the Termination Date of this Agreement. However, this Agreement
does not affect claims of Employee arising out of this Agreement.


7.Confidentiality.
Except as otherwise expressly provided, the parties agree that the terms and conditions of this Agreement are and will be deemed
to be confidential and hereafter will not be disclosed by either party to any other person or entity, except (a) as may be required
by law; (b) Employee may disclose to prospective employers the dates of Employee employment, positions held, evaluations received,
duties and responsibilities and salary history with the Company, (c) any party may disclose the existence, circumstances, terms,
amount, contents, and fact of this Agreement to any attorneys representing them in this matter (provided that such parties are
advised of this section and agree to abide by the terms hereof), and (d) the Company may disclose this Agreement to any possible
lending or financing source for the Company or to any party undertaking due diligence with respect to the Company or any advisors
to any such persons (provided that such parties are advised of this section). Employee agrees that if Employee finds it necessary
to disclose the existence or terms of this Agreement to Employee attorneys (i) Employee will advise such persons of this Section
and that they are under an obligation to maintain the absolute confidentiality of such information and (ii) such persons shall
agree to abide by the terms hereof. Each party assumes full responsibility pursuant to all terms of this Agreement for any such
person’s breach of this confidentiality clause. In addition, as of the Termination Date, the Employee shall return all of
the Company's property in his possession including but not limited to all cell phones, laptops, passwords, and keys. The Employee
shall also return to the Company or destroy all Company documents or Company electronic documents in the Employee’s possession.
The Employee represents and warrants that he has not retained any copies, electronic or otherwise, of such property.



    	 



    	 	



    



 


8.Work
Product. Employee agrees that while employed by Company all creations of Employee including, without limitation, copyrights,
trademarks, trade secrets, patents, moral rights, contract and licensing rights (“Work Product”) solely belong to Company
and are “works made for hire” within the meaning of the Copyright Act. Any and all rights of whatever kind and nature,
now or hereafter, to make, use, sell, license, distribute or otherwise transfer and reproduce such Work Product in any and all
media throughout the world, are and shall be the sole property of the Company. To the extent to which any works may not be “works
made for hire”, Employee hereby irrevocably assigns to Company, and waives all rights in, all right, title and interest worldwide
in and to all Work Product. To the extent reasonably required, Employee shall cooperate after employment with Company in retaining,
obtaining or maintaining such rights, including, but not limited to, execution of any required documentation, including but not
limited to, declarations of inventorship, powers of attorney and assignment documents. If the Company is unable because of Employee’s
mental or physical incapacity or for any other reason to secure Employee’s signature to apply for or to pursue any application
for any United States or foreign patents or copyright registrations assigned to the Company in accordance herewith, then Employee
hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee’s agent and
attorney in fact, to act for and in Employee’s behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same
legal force and effect as if executed by Employee.


9. Non-Disclosure
and Non-Solicitation. While employed by Company, Employee was exposed to confidential information about Company’s
and third parties’ businesses. “Confidential Information” includes any and all proprietary information relating
and/or belonging to the Company, whether in oral, written, graphic, electronic, machine-readable form, or any other means, including
without limitation: know-how, trade secrets, recipes, formulas, techniques, security measures, customer proposal and pricing strategies
and information, past, current and potential client or customer lists, data bases, inventions, improvements, concepts and ideas,
business plans and proposals, technical data, research reports, designs and specifications, program design, implementation, operational
practices and methodologies, new product and service developments, comparative analyses of competitors and competitive products,
services and operating procedures, passwords, salaries, financial, strategy, bank account, corporate structure, work histories,
personal background and contact information, employment reviews, partnership/affiliation arrangements, clients, financing arrangements,
marketing plans, programming techniques, ranking techniques, sources of services and goods, costs, profits, methods of obtaining
new clients, competitive analyses, personnel information, and financial data.



    	 



    	 	



    



Employee acknowledges
and agrees that the restrictive covenants set forth in the Employment Agreement, including without limitation Section 7, remain
in full force and effect, and nothing in this Agreement is intended to modify, alter, or waive the obligations therein.


10.No
Admissions. The parties agree that the entry of the parties into this Agreement, and the promises contained herein, is
not and will not be construed to be an admission of liability on the part of any party hereto.


 


11.No
Disparaging Conduct. Neither Employee nor the Company will commit any act or omission that would tend to disparage or adversely
affect the reputation of the other party or any present or future subsidiaries, parents or affiliates of the other party or any
of their respective principals, officers, directors, shareholders, members, managers, employees, businesses or operations. Without
in any way limiting the generality of the foregoing, neither Employee nor the Company will make any disparaging or unfavorable
statements to any third party, either orally or in writing, regarding the other party or any present or future subsidiaries, parents
or affiliates of any other party or any of their respective principals, officers, directors, shareholders, members, managers, employees,
businesses or operations.


 


12.Cooperation.
The Employee agrees to cooperate fully with the Company in its defense of or other participation in any administrative, judicial
or other proceeding arising from any charge, complaint or other action which has been or may be filed.


13.Notices.
Any notice required or permitted to be given under this Agreement will be sufficient if in writing and will be effective when received
if sent, postage-prepaid, by certified or registered mail, return receipt requested, or by overnight delivery service against receipt,
to the addresses below or to such other address as any party designates by written notice to the others:





	If to Employee:	Last known address in the Company’s records
	 	 
	If to the Company:	Attn:  General Counsel
	 	Vitacost.com, Inc.
	 	5400 Broken Sound Blvd. NW, Suite 500
	 	Boca Raton, Florida 33487



14.Governing
Law; Jurisdiction; Construction; Severability.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida without regard to conflicts
of law principles. The parties agree that this Agreement was made and entered into in Florida and each party hereby consents to
the jurisdiction of a competent court in Palm Beach County, Florida to hear any dispute arising out of this Agreement.
By execution and delivery of this Agreement, each party irrevocably submits to the personal and exclusive jurisdiction of such
courts for itself or himself, and in respect of its or Employee property with respect to such action. Each party agrees that venue
would be proper in any of such courts, and hereby waives any objection that any such court is an improper or inconvenient forum
for the resolution of any such action. The parties further agree that the mailing by certified or registered mail, return receipt
requested, to the addresses specified for notice in this Agreement, of any process or summons required by any such court will
constitute valid and lawful service of process against them, without the necessity for service by any other means provided by
statute or rule of court. The parties agree that any rule of construction to the effect that ambiguities are to be resolved against
the drafting party will not apply in the interpretation of this Agreement. In the event that any provision of this Agreement is
found to be void or unenforceable by a court of competent jurisdiction, then such unenforceable provision will be deemed modified
so as to be enforceable (or if not subject to modification then eliminated herefrom) for the purpose of those proceedings to the
extent necessary to permit the remaining provisions to be enforced.


 









 
    	 



    	 	



    



15.Entire
Agreement; Amendment; No Waiver. This Agreement contains the entire agreement of the parties, and the parties hereby acknowledge
and agree that this Agreement supersedes any prior statements, writings, promises, understandings or commitments between or among
the Company on the one hand, and Employee, on the other hand , except that nothing in this Agreement is intended to supersede or
replace the Non-Compete Agreement. This Agreement may not be modified or amended without the express written consent of the parties
hereto. Any failure by any party to enforce any of its rights and privileges under this Agreement will not be deemed to constitute
waiver of any rights and privileges contained herein.


16.Assignment.
The rights and obligations of the Parties under this Agreement will inure to the benefit of and will be binding upon the heirs,
legal representatives, successors and permitted assigns of the parties. Notwithstanding anything contained herein to the contrary,
the Company will have the right to assign this Agreement to any of its subsidiaries, direct or indirect parents or other affiliates
and to any entity that acquires all or substantially all of its assets or substantially all of the assets of the Company, provided
that such entity assumes the obligations of the Company under this Agreement. Except as otherwise set forth in this Agreement,
no party may assign Employee or its rights or obligations under this Agreement without the prior written consent of the other party.


17.Jointly
Drafted; Waiver of any Conflict of Interest. This Agreement is deemed to have been drafted jointly by the parties. Any
uncertainty or ambiguity shall not be construed for or against any other party based on attribution of drafting to any party.
 


18.Preservation
of Indemnification Rights. Notwithstanding the release set forth in this Agreement, (i) Employee shall retain all rights,
including indemnification rights, expressly provided to Employee pursuant to the Indemnification Agreement dated October 19, 2010,
among the Company and Employee, all rights to indemnification under the Company’s By-Laws, as well as all those rights available
to the Company’s directors under Section 174 of the General Corporation Law of the State of Delaware. 


19. Full
and Knowing Waiver. By signing this Agreement, Employee certifies that: (a) Employee has carefully read and fully understands
the provisions of this Agreement, and has had a reasonable opportunity to ask questions concerning this Agreement and to have received
answers thereto; (b) Employee understands that this Agreement is a binding contract and understands that Employee has twenty-one
(21) days to review this Agreement in order to decide whether to sign it, that, after Employee signs it, Employee has a period
of seven (7) days to revoke it and that if Employee decides not to sign this Agreement within the seven day period in which Employee
is permitted to do so, Employee will not be entitled to the payment of any monies pursuant to this Agreement (the date that is
seven (7) days after Employee has signed this Agreement and not revoked this Agreement is referred to herein as the “Effective
Date”); (c) Employee was advised by the Company in writing, via this Agreement, to consult with an attorney before
signing this Agreement; and (d) Employee agrees to the terms of the Agreement knowingly, voluntarily and without intimidation,
coercion or pressure.


20.Breach
of Agreement. In the event Employee breaches any of Employee obligations under this Agreement, or the Employment Agreement,
any outstanding obligations of the Company hereunder shall immediately terminate. If any suit is brought to enforce the provisions
of this Agreement, the prevailing party shall be entitled to its costs, expenses and reasonable attorney fees as well as any other
remedies available by law. Employee agrees that any violation of Sections 6, and 8 of this Agreement shall cause irreparable harm
to Company and Company shall be entitled to immediate injunctive relief.


 


21.Counterparts.
This Agreement may be signed in any number of counterparts, each of which will be an original but all of which together will constitute
one and the same instrument.



    	 



    	 	



    



IN WITNESS WHEREOF,
the undersigned have set their hands to this Agreement as of the date first set forth above.





 





	 	STEPHEN MARKERT
	 	 
	 	/s/ Stephen Markert
	 	 
	 	 
	 	VITACOST.COM, INC.
	 	 
	 	/s/ Jeffrey J. Horowitz
	 	Jeffrey J. Horowitz
	 	Chief Executive Officer