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EXHIBIT 10.19
AGREEMENT for TERMINATION, RELEASE and WAIVER OF RIGHTS
This Agreement for Termination, Release and Waiver of Rights (see "Waiver
Agreement") is entered into by Legacy Brands Inc. ("Legacy"), Xxxxxxxx Xxxx,
and Xxxxx Xxxxxxxxx, (collectively the "Releasors") (Legacy and the Releasors
sometimes collectively referred to herein as the "Parties") as of the 31st day
of December, 1997, and is intended to settle all the rights between the Parties
with respect to the facts below.
WHEREAS, the Parties have previously entered into an Investment Banking
Compensation Agreement dated March 7, 1995 (the "Investment Banking
Agreement"), attached hereto as Exhibit A.
WHEREAS, the Releasors desire to terminate the Investment Banking Agreement in
consideration of the mutual agreements, covenants and representations contained
in this Waiver Agreement.
WHEREAS, as partial consideration for entering into this Waiver Agreement and
as contemplated by the Investment Banking Agreement to be terminated as
provided below, the Company shall issue warrants to certain individuals,
including the Releasors, named in the Investment Banking Agreement in the form
of Exhibits B and C attached hereto with respect to Xx. Xxxx and substantially
in the form of Exhibit B attached hereto with respect to all other persons.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. WAIVER AND RELEASE BY RELEASORS. Subject to and conditioned upon Legacy's
fulfillment of its obligations hereunder, Releasors and Legacy hereby release,
acquit, and forever discharge the other, from any and all rights, actions,
claims, debts, demands, costs, contracts, liabilities, obligations, damages and
causes of action whether known, suspected or unknown, whether in law or in
equity, which Releasors or Legacy, as the case may be, had or now have or may
claim to have by reason of those matters set forth in the Investment Banking
Agreement, and any other matters which may relate, or which may have been
related, to any subject matter which was, or could have been, raised in
connection to the Investment Banking Agreement. Subject to and conditioned upon
Legacy's fulfillment of its obligations hereunder, the Parties agree to
terminate the Investment Banking Agreement and that Releasors rights, actions,
claims and demands relating to the rights contained in the Investment Banking
Agreement including, but not limited to, the issuance of any securities of
Legacy shall be governed exclusively by and limited to those rights set forth
in this Waiver Agreement.
2. ISSUANCE OF WARRANTS.
a. WARRANTS FOR PAST CONSIDERATION. Simultaneously with Releasors'
execution of this Waiver Agreement, Legacy shall deliver (i) a Warrant
in form and substance as attached hereto as Exhibit B and incorporated
herein by reference, to those
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individuals (herein collectively referred to as the "Warrant
Holders") and for that number of shares as provided in the
Investment Banking Agreement (adjusted for subsequent reverse
stock split(s)) and (ii) a Warrant in form and substance as
attached hereto as Exhibit C and incorporated herein by
reference to Xxxx to purchase One Hundred Thousand (100,000)
shares of Common Stock of Legacy.
b. Appointment of Xxxx as Agent for Warrant Holders. Each of the
Warrant Holders hereby appoint Xxxx as their agent and grant to
Xxxx a power of attorney to act on their behalf and in their
place with respect to all matters pertaining to any registration
rights granted pursuant to the Warrants, which power shall be
deemed to be coupled with an interest, shall be irrevocable for
the term of the Warrants and any purchaser, acquirer, transferee
or holder of such Warrant shall be subject to such power and
shall grant and execute such power of attorney as the Company
may deem reasonably necessary to fulfill the intent of the
foregoing provisions.
c. Finder's Fee Warrant. Legacy shall issue to Xxxx, upon the
first closing of a "Transaction" (as defined below), an
additional Warrant in form and substance as set forth in Exhibit
C for an additional One Hundred Thousand (100,000) shares of the
Common Stock of Legacy.
d. "Transaction" Defined. As used in this Waiver Agreement, the
term "Transaction" shall mean, whether in one or a series of
transactions, (i) the acquisition, directly or indirectly,
through purchases, sales or otherwise, by an investor, of all or
any portion of the securities of Legacy, or (ii) any merger,
consolidation, reorganization, recapitalization, restructuring
or other business combination or joint venture involving Legacy
and in investor, or (iii) any other form of financing provided
to Legacy by an investor, where (x) such investor(s) have been
introduced to Legacy by Xxxx on or before December 31, 1998,
(y) the Transaction is consummated on or before December 31,
1999, and (z) the aggregate "Consideration" for such Transaction
is equal to or greater than $1 million.
e. "Consideration" Defined: As used in this Waiver Agreement, the
term "Consideration" shall mean the total proceeds and other
consideration paid and to be paid or contributed and to be
contributed, directly or indirectly, in connection with a
Transaction (which consideration shall be deemed to include
amounts paid or to be paid into an escrow) to Legacy or its
shareholders, including, without limitation: (i) cast; (ii)
notes, securities and other property (including all options,
warrants or other instruments or arrangements convertible into
or exercisable for any of the foregoing) at the fair market
value thereof; (iii) liabilities assumed; (iv) payments to be
made in installments; (v) amounts paid or payable under
management, consulting, supply, service, distribution,
technology transfer or licensing agreements, and real property
or equipment lease agreements or agreements not to compete and
other similar arrangements (including such payments to
management), entered into other than in
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the ordinary course of business; and (vi) contingent payments
(whether or not related to future earnings or operations). The
fair market value of non-cash consideration consisting of
securities shall be determined based upon: (A) the closing sale
price for such securities on the registered national securities
exchange providing the primary market therefor on the last
trading day prior to the date of receipt thereof by Legacy or
its shareholders; (B) if such securities are not so traded, the
average of the closing bid and asked prices, as reported by the
National Association of Securities Dealers Automated Quotation
System on the last trading day prior to the date of receipt
thereof by Legacy or its shareholders; or (C) if such securities
are not so traded or reported, as agreed upon between Legacy and
Xxxx. The fair market value of any non-cash consideration other
than securities shall be determined by agreement between Legacy
and Xxxx. If all or any portion of the consideration is to be
paid over time, then that portion of the Consideration
attributable thereto shall be payable, in the sole discretion of
Xxxx, either, (i) as and when such payments are made or (ii)
upon consummation of the Transaction, calculated based upon the
present value of such Consideration utilizing a discount rate of
7% per annum.
3. Section 1542 Waiver. To the extent that the foregoing releases are
releases to which Section 1542 of the California Civil Code or similar
provisions of other applicable law applies, it is the intention of the Parties
that the foregoing releases shall be effective as a bar to any and all actions,
fees, damages, losses, claims, liabilities and demands of whatsoever character,
nature and kind, known or unknown, suspected or unsuspected specified herein.
In furtherance of this intention, the Releasors and Legacy expressly waive any
and all rights and benefits conferred upon them by the provisions of Section
1542 of the California Civil Code or similar provisions of applicable law which
are as follows:
"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 acknowledge that the foregoing waiver of the provisions of
Section 1542 of the California Civil Code was bargained for separately.
Thus, notwithstanding the provisions of Section 1542, and for the purpose
of implementing a full and complete release and discharge of Legacy, Releasors,
and each of them, expressly acknowledge that this Waiver Agreement is intended
to include in its effect without limitation all of the claims, causes of action
and liabilities which Releasors and Legacy, and each of them do not know or
suspect to exist in their favor at the time of execution of this Waiver
Agreement, and this Waiver Agreement, contemplates extinguishment of all such
claims, causes of action and liabilities.
4. Representations, Warranties and Covenants. Each party hereby represents and
warrants that he/she/it has the authority to enter into this Waiver Agreement
and execute and deliver the documents required under this Waiver Agreement, if
any.
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5. No Assignment or Transfer of Claims. The Parties, and each of them,
represent that they have not heretofore assigned or transferred, or purported
to assign or transfer, to any person or entity, any of the rights, claims or
causes of action, including those contained in the Investment Banking Agreement
or any other document, or any portion thereof, or any interests therein.
6. Headings. The headings that are made in this Waiver Agreement are provided
for the purpose of convenience only and shall not be construed in interpreting
the provisions contained in this Waiver Agreement.
7. Successors. This Waiver Agreement and all of its terms and provisions
shall inure to the benefit of, and shall be binding upon the heirs, legal
representatives, successors and assigns of the Parties and each of them.
8. Governing Law. This Waiver Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California.
9. Construction of this Waiver Agreement. The language of all the parts of
this Waiver Agreement shall in all cases be construed as a whole, according to
its fair meaning, and not strictly for or against any of the Parties. As used
in this Waiver Agreement, the masculine or neuter gender and singular or plural
number shall be deemed to include the others wherever the context so indicates
or requires.
10. Entire Agreement. This Waiver Agreement embodies the entire agreement and
understanding of the Parties hereto in respect of the subject matter contained
herein and is an integrated contract.
11. Counterparts. This Waiver Agreement may be executed in one or more
counterparts, all of which together shall be deemed to be of one instrument.
12. Waiver. No waiver of any portion of this Waiver Agreement shall be
effective unless made in writing. No waiver of any breach of any provision of
the Waiver Agreement shall constitute a waiver of any subsequent breach of the
same or any other provision of this Waiver Agreement.
13. Savings Clause. If any provision of this Waiver Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Waiver Agreement, or the application of such
provision to persons or circumstances other than those as to which is held
invalid, shall not be affected thereby.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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14. Attorney's Fees. In any action or proceeding involved in the enforcement
of, or defence against, any provision of this Waiver Agreement, the prevailing
party in such action or proceeding shall be entitled to reasonable attorney's
fees and all costs and expenses incurred in connection with such action or
proceeding. In addition, the nonprevailing party shall pay all costs and
expenses incurred in enforcing such award or judgment, and this obligation
shall be severable from the other provisions of this section and shall survive
any judgment, order or award and shall not be deemed to be merged therewith.
LEGACY BRANDS, INC.
Date: ___________ By: ________________________________
Xxxxxx X. Xxxx
Chief Executive Officer
Date: ___________ By: ________________________________
Xxxxx Xxxxxxxx
Chief Financial Officer
__________________________________________
Date: 3/6/98 By: /s/ XXXXXXXX XXXX
___________ ________________________________
Xxxxxxxx Xxxx
Date: ___________ By: ________________________________
Xxxxx Xxxxxxxxx
Acknowledged and Agreed as to Section 2 Only:
Date: ___________ By: ________________________________
Xxxxxxx X. Xxxxxxx
Date: 2-9-98 By: /s/ XXXXXX X'XXXXXX, XX.
___________ ________________________________
Xxxxxx X'Xxxxxx, Xx.
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EXHIBIT A
Investment Banking Compensation Agreement dated March 7, 1995
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14. Attorney's Fees. In any action or proceeding involved in the enforcement
of, or defence against, any provision of this Waiver Agreement, the prevailing
party in such action or proceeding shall be entitled to reasonable attorney's
fees and all costs and expenses incurred in connection with such action or
proceeding. In addition, the nonprevailing party shall pay all costs and
expenses incurred in enforcing such award or judgment, and this obligation
shall be severable from the other provisions of this section and shall survive
any judgment, order or award and shall not be deemed to be merged therewith.
LEGACY BRANDS, INC.
Date: ___________ By: ________________________________
Xxxxxx X. Xxxx
Chief Executive Officer
Date: ___________ By: ________________________________
Xxxxx Xxxxxxxx
Chief Financial Officer
__________________________________________
Date: ___________ By: ________________________________
Xxxxxxxx Xxxx
Date: ___________ By: ________________________________
Xxxxx Xxxxxxxxx
Acknowledged and Agreed as to Section 2 Only:
Date: 3/5/98 By: [SIG]
___________ ________________________________
Xxxxxxx X. Xxxxxxx
Date: ___________ By: ________________________________
Xxxxxx X'Xxxxxx, Xx.
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14. Attorney's Fees. In any action or proceeding involved in the enforcement
of, or defence against, any provision of this Waiver Agreement, the prevailing
party in such action or proceeding shall be entitled to reasonable attorney's
fees and all costs and expenses incurred in connection with such action or
proceeding. In addition, the nonprevailing party shall pay all costs and
expenses incurred in enforcing such award or judgment, and this obligation
shall be severable from the other provisions of this section and shall survive
any judgment, order or award and shall not be deemed to be merged therewith.
LEGACY BRANDS, INC.
Date: ___________ By: ________________________________
Xxxxxx X. Xxxx
Chief Executive Officer
Date: ___________ By: ________________________________
Xxxxx Xxxxxxxx
Chief Financial Officer
__________________________________________
Date: ___________ By: ________________________________
Xxxxxxxx Xxxx
Date: 3/3/98 By: [SIG]
___________ ________________________________
Xxxxx Xxxxxxxxx
Acknowledged and Agreed as to Section 2 Only:
Date: ___________ By: ________________________________
Xxxxxxx X. Xxxxxxx
Date: ___________ By: ________________________________
Xxxxxx X'Xxxxxx, Xx.
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