EXHIBIT 99.23
AGREEMENT
THIS AGREEMENT is made as of this twenty-second day of December 1995, between
VITAFORT INTERNATIONAL CORPORATION, a Delaware corporation, with its principal
offices at 1800 Avenue of the Stars, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000 (hereinafter "Vitafort" or the "Company"), and XXXX XXXXX, an individual
(hereinafter "Xxxxx")
RECITALS
WHEREAS, Xxxxx performs consulting services as an executive of Vitafort
pursuant to a Consulting Agreement dated, August 15, 1995, by and between
Vitafort and Xxxxx (hereinafter the "Consulting Agreement") ; and
WHEREAS, Xxxxx has voluntarily deferred a portion of his fees since the
beginning of his consulting, the accrued total of deferred fees as of November
2, 1995 being $6,600 and
WHEREAS, the Board of Directors has ratified and approved an offer for
Management and selected consultants to convert all deferred fees as of November
2, 1995 into equity at the same rate as the recent Bridge Equity Offering (One
share of Vitafort International Corporation common stock for each 12CENTS of
deferred fees, plus 1/2 warrant to purchase a share of common stock at 22
1/2CENTS and 1/2 warrant to purchase a share of common stock at 30CENTS).
WHEREAS, Xxxxx and Vitafort desire to pay the deferred fees by offsetting
the amount due Xxxxx against a comparable purchase of equity in Vitafort.
NOW THEREFORE, and in consideration for the foregoing facts and mutual
covenants and agreements contained in this Agreement, the parties agree as
follows:
1. INCORPORATION OF RECITALS
The Recitals above stated are incorporated by reference as if fully set
forth herein.
2. PURCHASE OF EQUITY/PAYMENT OF DEFERRED FEES
The parties agree that the purchase of 55,000 shares of common stock,
27,500 A warrants, and 27,500 B warrants identical to those issued in the
Bridge Equity Offering shall be fully paid in all respects (a) by
offsetting the purchase against the fees Vitafort owes Xxxxx as of November
2, 1995, and (b) Xxxxx shall have no further liability under and pursuant
to payment.
3. ACKNOWLEDGMENT OF PAYMENT AND RELEASE
Vitafort acknowledges that it has been paid the full for the equity
purchase amount and Xxxxx acknowledges that he has been paid an equal
amount to be applied against fees owed Xxxxx for 1995. Vitafort
releases and discharges Xxxxx and his successors, executors,
administrators, heirs and assigns from any liability with respect to the
purchase cost. It is expressly understood and agreed by Vitafort that the
release referred to in this paragraph extends to all claims, whether known
or unknown or suspected. Vitafort hereby waives the provisions of Civil
Code Section 1542 which provides:
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"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 the settlement with the
debtor."
4. REPRESENTATIONS BY THE PARTIES
Each of the parties warrants and represents to the other party that neither
of them has assigned, sold or transferred, or purported to assign, sell or
transfer, to any person not a party to this agreement any matter, or part
of any matter, covered by this Agreement. Each of the parties agrees to
indemnify and hold harmless the other party from and against any claim,
demand, damage, debt, liability, cost, expense, lien, action or cause of
action, including attorneys' fees and costs based upon or arising out of
any breach of any warranty or representation.
Xxxx Xxxxx confirms he has read and understands the content of the
subscription agreement prepared for the Bridge Equity Offering.
Vitafort agrees to register the shares purchased, and the shares underlying
the warrants, as part of the very next registration using S1, S3, or S8
filings with the SEC.
5. MODIFICATION
No variation, amendment or modification of this Agreement or waiver of any
of the terms or provisions thereof shall be deemed valid unless in writing
as an amendment hereto signed by the parties hereto.
6. NO ASSIGNMENT OF CLAIMS
Each releasing party represents and warrants to each released party that it
has not heretofore voluntarily, by operation of law or otherwise, assigned,
transferred, encumbered or conveyed or purported to assign, transfer,
encumber or convey to any person or entity any claim, debt, demand,
liability, obligation, account, reckoning, cost, expense, lien, action
or cause of action purportedly released pursuant to Paragraph 7 of this
Agreement. Each party hereto shall defend and indemnify the other party
hereto for any breach of the aforementioned representations and
warranties.
7. INTEGRATION
This Agreement constitutes the entire agreement and sets forth the entire
understanding of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, covenants, arrangements,
communications, correspondence, representations or warranties, whether oral
or written, and this Agreement may not be modified, amended or terminated
except by a writing signed by Vita fort, Xxxxx, and any other party to be
charged.
8. EXECUTION OF ADDITIONAL DOCUMENTS
The parties hereto agree to execute such additional documents as may be
necessary to implement the terms of this Agreement
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9. INTEGRITY OF AGREEMENT
(a) The terms of this Agreement are contractual and not mere recital.
This Agreement is the result of negotiation between the parties, each of
whom has participated in the drafting hereof through its or his
respective attorneys.
(b) This Agreement has been carefully reviewed by each party, with full
understanding thereof, and voluntary execution thereof without duress
or coercion is hereby acknowledged.
(c) Each party hereto agrees that it or he will not take any action which
would interfere with the performance of this Agreement by any other
party hereto or which would adversely affect any of the rights provided
for herein.
(d) Each party hereto covenants and agrees not to bring any claim,
action, suit or proceeding against any other party hereto, directly
or indirectly, regarding any of the released claims, and each party
further covenants and agrees that this Agreement is a bar to any such
claim, action, suit or proceeding. However, this subparagraph shall not
bar any claim, action, suit or proceeding to enforce or interpret, on
this Agreement arising out of the obligations of any party provided
herein.
10. HEIRS, SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of, and shall be binding upon
the heirs, successors and assigns of the parties hereto, and each of
them.
11. SEVERABILITV
In the event that any material provision of this Agreement should be
held to be voidable or unenforceable, the remaining portions hereof
shall remain in force and effect.
12. GOVERNING LAW/VENUE/SERVICE JURISDICTION
(a) This Agreement shall be construed in accordance with, and shall be
governed by the laws of the State of California.
(b) Venue for any litigation or arbitration arising out of any claim or
dispute to enforce or interpret this Agreement shall be in the County of
Los Angeles, State of California.
(c) Vitafort and Xxxxx each agrees to submit to the jurisdiction of all
Federal and State Courts in the State of California.
13. ATTORNEYS' FEES AND COSTS
In the event of any dispute arising out this Agreement or to enforce
any of its terms, the prevailing party in any legal proceeding shall be
entitled to recover all costs incurred in connection therewith,
including but not limited to reasonable attorneys' fees.
14. INDEMNIFICATION
The parties agree to defend and indemnify each other from any claims
made, arising out of or in connection with any breach of the
representations or agreements contained in this Agreement.
15. GENDER/PARAGRAPH HEADINGS
As used in this Agreement, the masculine, feminine or neuter gender,
and the singular or plural number shall each be deemed to include the
others whenever the context so indicates.
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16. REPRESENTATIVE CAPACITY
Each person executing this Agreement in a representative capacity
represents and warrants that he or she is empowered to do so. Each
corporate entity executing this Agreement represents and warrants that
its Board of Directors has resolved to execute this Agreement.
17. NOTICES
For purposes of notice to any party pursuant to this Agreement, notice
shall be in writing and may be made by personal service or telefax, and
deemed completed on the date of delivery or telefax, or by U.S. Mail,
and deemed completed three business days after deposit in the mail.
Notice to the Vitafort shall be to:
1800 Avenue of the Stars
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telefax (000) 000 0000
Notice to Xxxxx shall be to:
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Changes of any of the foregoing addresses or telefax numbers may be
effected by providing written notice of same pursuant to this Paragraph 18.
18. Counterparts
This Agreement may be executed in counterparts and transmitted via
facsimile, and each such counterpart shall be deemed to be an original
executed document.
19. Execution
THIS AGREEMENT HAS BEEN CAREFULLY READ, REVIEWED, EVALUATED AND UNDERSTOOD
BY EACH OF THE UNDERSIGNED, AND IS HEREBY AGREED UPON.
IN WITNESS WHEREOF, we have set our hands and seals as of the day and year first
above written.
VITAFORT INTERNATIONAL CORPORATION XXXX X. XXXXX
By /s/ Xxxx Xxxxxxx /s/ Xxxx X. Xxxxx
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Xxxx Xxxxxxx, President Xxxx X. Xxxxx
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