EXHIBIT 99.26
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
XXXXXXXXX, an individual (hereinafter "Xxxxxxxxx")
RECITALS
WHEREAS, Xxxxxxxxx performs consulting services as an executive of
Vitafort pursuant to a Consulting Agreement dated, August 15, 1995, by and
between Vitafort and Xxxxxxxxx (hereinafter the "Consulting Agreement") ; and
WHEREAS, Xxxxxxxxx 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 $13,000 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 12 CENTS of deferred fees, plus 1/2 warrant to purchase a share of
common stock at 22 1/2 CENTS and 1/2 warrant to purchase a share of common
stock at 30 CENTS).
WHEREAS, Xxxxxxxxx and Vitafort desire to pay the deferred fees by
offsetting the amount due Xxxxxxxxx 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 108,333 shares of common stock,
54,167 A warrants, and 54,167 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 Xxxxxxxxx as of
November 2, 1995, and (b) Xxxxxxxxx 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 Xxxxxxxxx acknowledges that he has been paid an equal
amount to be applied against fees owed Xxxxxxxxx for 1995. Vitafort
releases and discharges Xxxxxxxxx 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 Xxxxxxxxx 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, Xxxxxxxxx, 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 Xxxxxxxxx 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 Xxxxxxxxx shall be to:
Xxxx Xxxxxxxxx
00000 Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
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 XXXXXXXXX
By /s/ Xxxx Xxxxxxx /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxx, President Xxxx Xxxxxxxxx
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