TERMINATION AGREEMENT
This Termination Agreement (together with all Exhibits, amendments and
supplements thereto, the "agreement"), made as of March 12, 2000 by and between
Xxxxx Xxxxxxx ("Xxxxxxx") and Omni Nutraceuticals, Inc., a Utah corporation (the
"Company"). Xxxxxxx and the Company are sometimes referred to herein
collectively as the "Parties".
WITNESSETH:
WHEREAS, between approximately October 15, 1998 and March 12, 2000 Xxxxxxx
had been employed in various capacities, most recently as the President and
Chief Executive Officer of the Company; and
WHEREAS, Xxxxxxx and the Company both desire to provide for the orderly
termination of Xxxxxxx'x employment by the Company.
NOW, THEREFORE, in consideration of the following covenants and agreements
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confirmed, the Parties hereby agree as follows:
1. Effective Date of Termination of Employment. Xxxxxxx'x employment with
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the Company is hereby mutually agreed to have been terminated, effective as of
March 12, 2000, and in connection therewith, any and all employment agreements,
=
whether oral or written, are hereby terminated and have no further force and
effect (the "Termination").
2. Termination Terms. In connection with the Termination, the Parties agree
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as follows:
2.1 Payment of Unpaid Salary, Vacation and/or Sick Pay. Prior to or
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concurrently with the execution and delivery of this Agreement by the parties,
the Company agrees to pay Xxxxxxx the xxxxx sum of $22,644.23reflecting all
accrued but unpaid salary plus accrued but unpaid vacation pay due Xxxxxxx
through March 12, 2000 and the sum of $694.17 representing the aggregate amount
of unpaid claims due Xxxxxxx under the Company's Exec-U-Care Medical
Reimbursement Insurance Plan.
2.2 Stock Options. All of Xxxxxxx'x stock options outstanding as of the
--------------
date hereof are hereby cancelled and of no further force and effect other than
for fully vested options ("Options") to purchase 50,000 shares (the "Option
Shares") of the Company's common stock ("Common Stock") at an option exercise
price of $2.50 per share, provided that such Options are exercised on or prior
to December 31, 2000 at which time they will expire and be of no further force
or effect.
2.3 Loan Forgiveness. All remaining outstanding indebtedness (including
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principal, accrued interest and other charges) under a loan in the original
principal amount of $350,000 made to Xxxxxxx by the Company at the time of his
original employment by the Company is hereby forgiven in full.
2.4 Waiver. Except as provided in Sections 2.1 through 2.3 and Section 3.4
------
hereof, Xxxxxxx hereby irrevocably and unconditionally waives any and all rights
to receive any further compensation and benefits from the Company or any of its
subsidiaries, divisions, parents, affiliated corporations, directors, officers,
shareholders, employees, successors, and assigns, including, without limitation,
all severance benefits and payments, salary, bonuses, commissions,
reimbursements, stock options, awards, grants or any other stock-based
compensation, club dues, automobile allowances, life and other insurance and, to
the full extent permitted by law, all medical, health, welfare and retirement
benefits.
2.5 Releases. Xxxxxxx and the Company, R. Xxxxxxx Xxxxxx and his spouse,
--------
Xxxx Xxxxx and his spouse, and Xxxxxx Xxxxxxx, Xx. will execute and deliver to
each other mutual general releases in the forms attached as Exhibits A, B, C and
D, respectively.
3. Covenants of Xxxxxxx. Xxxxxxx hereby covenants and agrees with the
----------------------
Company that:
3.1 Confidentiality. He shall keep the terms of the Termination and all
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other non-public information regarding the Company, its products, customers,
suppliers, business plans and other proprietary information confidential and
shall not disclose such information to any third party, including, without
limitation, any Company employee, customer, supplier, vendor, consultant,
adviser, banker, or other person who has or may have in the future any business
dealings with the Company or any of its subsidiaries, divisions, parents,
affiliated corporations, directors, officers, shareholders, employees,
successors, and assigns, except as may be required by the Company, by law or
under valid court or administrative order or decree; provided, however, that he
shall give prompt notice to the Company of the receipt of any such order or
decree to permit the Company to seek to have such order or decree vacated.
3.2 No Disparagement. He agrees that shall make no written or oral
-----------------
statements disparaging the Company, its products, or any of its subsidiaries,
divisions, parents, affiliated corporations, directors, officers, shareholders,
employees, successors, and assigns.
3.3 Nonsolicitation. Until the second anniversary of the date hereof, he
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shall not solicit for employment or otherwise employ, or assist in the
solicitation or employment of, any current employee of the Company or its
subsidiary, XxxxxxXxxx.xxx. Notwithstanding the foregoing, Xxxxxxx may solicit
for employment any current employee of the Company or XxxxxxXxxx.xxx whose
employment with the Company or XxxxxxXxxx.xxx has been terminated for at least
three months prior to such solicitation, subject to the terms of any agreements
between the Company and any such terminated employee.
3.4 Cooperation. He will cooperate fully, at the Company's expense, with
-----------
the Company and its auditors and counsel in connection with any claim, action,
suit, investigation or other proceeding asserted or commenced by any court,
governmental agency or body or other third party relating to any of the matters
which comprise this Agreement or any other matters related or attributable to
the affairs of the Company while he was employed by the Company; including,
without limitation, making himself available during normal business hours, upon
reasonable advance notice and reimbursement of his fees and expenses as
hereinafter provided, to meet with and respond to questions of representatives
of the Company and others, including, without limitation, the Company's auditors
and counsel, which responses will be complete and truthful to the best of his
knowledge; and preserving and making available to the Company and its counsel
copies of all personal correspondence, memoranda, files, agreements or other
documents (whether in written or electronic form) in his possession or control
which in any way relate to his management of the Company's affairs and the
performance of his duties and, in connection therewith, he hereby waives any
right to assert the attorney-client privilege, as to any Company attorneys, in
respect of any such correspondence, memoranda, files, agreements or other
documents to the extent any such correspondence, memoranda, files, agreements or
other documents will assist the Company in the defense of any such claim,
action, suit, investigation or other proceeding. In consideration of such
cooperation, the Company agrees to reimburse Xxxxxxx the sum of $150 per hour
for the time he actually spends assisting the Company and for his reasonable
out-of-pocket expenses he actually incurs in making himself available for such
cooperation; provided, however, that prior to incurring any such out-of-pocket
expenses, he shall obtain the consent of the Company.
4. Covenants of the Company.
---------------------------
4.1 No Disparagement. The Company and its subsidiaries, divisions, parents,
----------------
affiliated corporations, directors, officers, shareholders, and employees shall
not make any written or oral statements disparaging Xxxxxxx or his efforts as an
officer, director and/or employee of the Company or its subsidiaries.
4.2 Piggy-Back Rights. If the Company at any time proposes for any reason to
-----------------
register shares of Common Stock under the Securities Act of 1933, as amended, on
Form S-8 promulgated under the Securities Act or any successor forms thereto, it
shall promptly give written notice to Xxxxxxx of its intention to so register
such shares and, upon the written request, delivered to the Company within 10
days after delivery of any such notice by the Company, of Xxxxxxx to include in
such registration the Option Shares for inclusion in such Form S-8 (which
request shall specify the number of Option Shares proposed to be included in
such registration), the Company shall cause all such Option Shares to be
included in such registration on the same terms and conditions as the securities
otherwise being sold in such registration.
5. Miscellaneous.
-------------
------
5.1 Expenses. Each of the parties hereto agrees to pay his and its own costs
--------
and expenses, including, without limitation, all attorneys fees and expenses,
incurred in connection with the negotiation, preparation, execution, delivery
and performance of this Agreement and the transactions contemplated hereby. If
any legal action is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing party shall be
entitled to recover such party's reasonable attorneys' and other costs
(including all investigatory, expert and court costs) incurred in such legal
action, in addition to any other relief to which such party may be entitled.
5.2 Notices. All notices, requests, demands and other communications
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hereunder shall be in writing and shall be deemed to have been duly given or
made as of the date delivered, if delivered personally, or two (2) days (which
=
is not a Saturday, Sunday, holiday or day on which commercial banks in Los
Angeles, CA are required or permitted to close (a "Business Day")) after having
been deposited with a courier, if sent by overnight courier or having been sent
by telecopy, if sent by telecopy (receipt confirmed), or three (3) Business Days
after having been mailed, if mailed by registered or certified mail, postage
prepaid, return receipt requested, as follows:
If to The Company, to: Omni Nutraceuticals, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: President
If to Xxxxxxx, to: Xxxxx Xxxxxxx
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
With a copy to: Xxxxxxxxx X. XxXxxxxxx, Xx., Esq.
Xxxxx & Xxxxxxxxxx
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
or to such other address, as any party shall have designated by like notice to
the other parties hereto (except that a notice of change of address shall only
be effective upon receipt).
5.3 Applicable Law. This Agreement shall be governed by, and construed in
---------------
accordance with, the laws of the State of California without regard to its
choice of law principles.
5.4 Waivers, etc. The failure of any of the parties hereto at any time to
--------------
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor in any way to affect the validity of
this Agreement or any provision hereof or the right of any of the parties hereto
to thereafter enforce each and every provision of this Agreement. No waiver of
any breach of any of
the provisions Agreement shall be effective unless set forth in an instrument
executed by the party or parties against whom enforcement of such waiver is
sought; and no waiver or breach shall be construed or deemed to be a waiver of
any other or subsequent breach.
5.5 Assignment. Neither this Agreement nor any rights, interests or
----------
obligations hereunder may be assigned (by operation of law or otherwise) by any
party hereto without the prior written consent of the other party hereto, except
that the Company may assign any and all of its rights and remedies and delegate
any and all of its obligations under this Agreement to any affiliate, subsidiary
or any entity owned or controlled by it, provided such affiliate, subsidiary or
entity agrees in writing to be bound by the terms hereof, and such assignment
does not relieve the Company of its obligations hereunder.
5.6 Binding Effect; Benefits. This Agreement shall inure to the benefit of,
-------------------------
and shall be binding upon, the parties hereto and their respective successors
and permitted assigns. Nothing herein contained, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies under or by
reason of this Agreement.
5.7 Amendment. This Agreement may only be amended by a written instrument
---------
executed by each of the parties hereto.
5.8 Severability. Any provision of this Agreement which is held by a court
------------
of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
5.9 Entire Agreement. This Agreement (together with the other agreements and
----------------
documents being delivered pursuant to or in connection with this Agreement)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter hereof,
including, without limitation, that certain Memorandum dated June 9, 1999, by
and between the Company and Xxxxxxx.
5.10 Headings. The headings contained herein are for the sole purpose of
--------
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
5.11 Execution in Counterparts. This Agreement may be executed in one or
---------------------------
more counterparts, and by the different parties hereto in separate counterparts,
each of which shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement, and shall become effective when one
or more counterparts has been signed by each of the parties hereto and delivered
to each of the other parties hereto.
5.12 Further Assurances. Xxxxxxx hereby agrees, at his sole cost and
-------------------
expense, to execute and deliver, all such further agreements, instruments or
other documents as the Company may reasonably request in order to implement the
provisions of this Agreement.
5.13 Specific Performance. The parties hereby acknowledge and agree that the
--------------------
failure of Xxxxxxx and/or the Company to perform their respective agreements and
covenants hereunder will cause irreparable injury for which damages, even if
available, will not be an adequate remedy. Accordingly, Xxxxxxx and the Company
each hereby consent to the issuance of injunctive relief by any court of
competent jurisdiction to compel performance of such party's obligations and to
the granting by any court of the remedy of specific performance of his or its
obligations hereunder and in connection therewith Xxxxxxx and/or the Company
each hereby waive any right to require any bond or other security to be paid or
furnished by Xxxxxxx and/or the Company in connection with any application for
such relief.
IN WITNESS WHEREOF, the Company, by its representative thereunto duly
authorized, and Xxxxxxx have each executed this Agreement effective as of the
date first above written.
OMNI NUTRACEUTICALS, INC.
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
EXHIBIT A
MUTUAL GENERAL RELEASE
----------------------
This Mutual General Release ("Release") made this 12th day of March, 2000,
is entered into by and between Xxxxx Xxxxxxx ("Xxxxxxx") and Omni
Nutraceuticals, Inc. ("Company"). Xxxxxxx and the Company are collectively
referred to as the "Parties."
The Parties enter into this Release with reference to the following facts:
A. Between approximately October 15, 1998 and March 12, 2000, Xxxxxxx was
employed by the Company in various capacities, most recently as the President
and Chief Executive Officer of the Company; and
X. Xxxxxxx and the Company now desire to negotiate an orderly termination of
Xxxxxxx'x employment with the Company and have entered into an Agreement of even
date herewith (the "Termination Agreement") regarding the terms of his
termination of employment.
NOW, THEREFORE, in consideration of the following covenants and agreements and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confirmed, the Parties agree as follows:
1. Release by Xxxxxxx. Except as to the obligations to be performed by
--------------------
the Company under the Termination Agreement, and except as expressly provided
herein, Xxxxxxx, individually, and on behalf of his heirs, legal
representatives, and assigns, does hereby release and forever discharge the
Company, its subsidiaries, divisions, parents, affiliated corporations,
directors, officers, shareholders, employees, successors, and assigns, of and
from all claims, demands, obligations, liabilities, damages, costs, fees,
expenses, actions, causes of action, suits at law or equity of whatever kind or
nature, known or unknown, suspected to exist or not suspected to exist,
anticipated or not anticipated, which have arisen, are now arising, or hereafter
may arise out of or in connection with Xxxxxxx'x employment by, and any right
to acquire shares in, the Company.
2. Release by the Company. Except as expressly provided herein and as to
-------------------------
the obligations to be performed by Xxxxxxx under the Termination Agreement and
as to any alleged kickback to Xxxxxxx relating to the Inholtra brand of product,
the Company, on its own behalf and on behalf of its subsidiaries, divisions,
parents, affiliated corporations, directors, officers, employees, successors,
and assigns, does hereby release Xxxxxxx, individually, and his heirs, legal
representatives and assigns, of and from all claims, demands, obligations,
liabilities, damages, costs, fees, expenses, actions, causes of action, suits of
law or equity of whatever kind or nature, known or unknown, suspected to exist,
anticipated or not anticipated, which have arisen, are now arising, or hereafter
may arise out of or in connection with Xxxxxxx'x employment by the Company,
Xxxxxxx'x management of the affairs of the Company while so employed and
Xxxxxxx'x acquisition of shares in the Company in accordance with the provisions
of those certain Options referred to in the Termination Agreement.
3. Indemnification by Company. In the event any person or entity asserts
----------------------------
against Xxxxxxx any claim, demand, action or cause of action (collectively
"Claims"), irrespective of whether a lawsuit is filed, which in any way is based
upon or relates to Xxxxxxx'x acts or omissions as an officer, director or
employee of the Company, the Company agrees to defend, indemnify and hold
Xxxxxxx harmless from any and all losses, damages or other obligations relating
to such Claims to the full extent provided in the Company's Articles of
Incorporation and Bylaws and by applicable law. The foregoing indemnification
covenant on the part of the Company is expressly intended to cover any and all
claims heretofore or hereafter brought by Health & Vitamins Express, Inc. in
connection with its existing lawsuit against the Company, Xxxxxxx and others.
4. Officers and Directors Liability Insurance. The Company hereby covenants
------------------------------------------
to Xxxxxxx that, as soon as practicable after the date hereof, Xxxxxxx shall be
named as an insured under a directors and officers policy of liability insurance
for all periods during which Xxxxxxx has been an officer and/or director of the
Company with a current limit of at least $5,000,000, which current limit the
Company agrees to continue to maintain, so long as such policy is available to
the Company on commercially reasonable terms.
5. California Civil Code Section 1542 Waiver. With respect to each of the
-------------------------------------------
matters released by each party to this Release, each such party waives all
rights under the provisions of Section 1542 of the California Civil Code and any
similar rights in any state or territory of the United States or under any
similar statute or regulation of the United States or any of its agencies.
Section 1542 of the California Civil Code reads 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."
6. Consultation with Counsel. Each of the Parties acknowledges and
---------------------------
represents that he or it has been given an opportunity to consult with, and has
-
been represented by
and has consulted with, an attorney of his or its own choice in connection with
the execution of this Release, and has relied upon the advice of such attorney
in negotiating and executing this Release.
7. Claims Not Previously Assigned. Each of the Parties represents and
---------------------------------
warrants to each of the other Parties, respectively, that he or it has not sold,
assigned, transferred, conveyed or otherwise disposed of any claim, demand,
cause of action or other matter which is the subject of his or its release as to
such other party, respectively, set forth above.
8. Binding on Successors. The provisions of this Release shall inure to the
---------------------
benefit of, and shall be binding upon, the Parties and each of their respective
heirs, legal representatives, successors and assigns.
9. Assumption of Risk of Differences in Fact. Each of the Parties
-----------------------------------------------
acknowledges that if the facts with respect to which this Release is executed
are found hereafter to be different from what such party now believes those
facts to be, that party accepts and assumes the risk of such possible
differences and agrees that this Release shall be, and shall remain, effective,
notwithstanding such differences.
10. Counterparts. This Release may be executed in multiple counterparts
------------
which taken together shall constitute the Release of the Parties.
11. Acknowledgment. Each person who signs this Release represents and
--------------
warrants that he or it: has carefully read and fully understands this Release
and its final and binding effect; has been afforded sufficient time and
opportunity to review this Release with advisors or attorneys of his or its
choice; has had an opportunity to negotiate with regard to the terms of this
Release; is fully competent to manage his or its own business affairs and to
enter into or sign this Release; has signed this Release knowingly, freely, and
voluntarily; and that the only promises made to induce him or it to sign this
Release are those stated herein.
12. Attorneys' Fees and Litigation Costs. If any legal action is brought
---------------------------------------
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover such
party's
reasonable attorneys' and other costs (including all investigatory, expert and
court costs) incurred in such legal action, in addition to any other relief to
which such party may be entitled.
Dated: March 12, 2000 /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Dated: March 12, 2000 OMNI NUTRACEUTICALS, INC.
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, President
EXHIBIT B
MUTUAL GENERAL RELEASE
----------------------
This Mutual General Release ("Release") made this 12th day of March, 2000,
is entered into by and between R. Xxxxxxx Xxxxxx and his spouse, Xxxxxx Xxxxxxx
(collectively, "Xxxxxx") and Xxxxx Xxxxxxx ("Xxxxxxx"). Xxxxxx and Xxxxxxx are
collectively referred to as the "Parties."
The Parties enter into this Release with reference to the following facts:
A. Between approximately October 15, 1998 and March 12, 2000, Xxxxxxx
was employed by Omni Nutraceuticals, Inc. (the "Company") in various capacities,
most recently as the President and Chief Executive Officer;
X. Xxxxxxx and the Company, now desire to negotiate an orderly
termination of Xxxxxxx'x employment with the Company and have entered into an
Agreement of even date herewith (the "Termination Agreement") regarding the
terms of his termination of employment; and
X. Xxxxxx is a shareholder and was formerly employed as the Chairman of
the Board of Directors of the Company.
NOW, THEREFORE, in consideration of the following covenants and agreements
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confirmed, the Parties agree as follows:
1. Release by Xxxxxx.
-------------------
Except as expressly provided herein and as to the obligations to be performed by
Xxxxxxx under the Termination Agreement and as to any alleged kickback to
Xxxxxxx relating to the Inholtra brand of product, Xxxxxx, individually and on
behalf of his respective heirs, legal representatives, and assigns, does hereby
release and forever discharge Xxxxxxx, individually, and his respective heirs,
legal representatives and assigns, of and from all claims, demands, obligations,
liabilities, damages, costs, fees, expenses, actions, causes of action, suits at
law or equity of whatever kind or nature, known or unknown, suspected to exist
or not suspected to exist, anticipated or not anticipated, which have arisen,
are now arising, or hereafter may arise out of or in connection with Xxxxxxx'x
employment by the Company.
2. Release by Xxxxxxx.
--------------------
Except as expressly provided herein, Xxxxxxx, individually, and on behalf of his
heirs, legal representatives and assigns, does hereby release Xxxxxx,
individually, and his respective heirs, legal representatives and assigns, of
and from all claims, demands, obligations, liabilities, damages, costs, fees,
expenses, actions, causes of action, suits of law or equity of whatever kind or
nature, known or unknown, suspected to exist, anticipated or not anticipated,
which have arisen, are now arising, or hereafter may arise out of or in
connection with Xxxxxxx'x employment by, and any right to acquire shares in the
Company.
3. California Civil Code Section 1542 Waiver.
----------------------------------------------
With respect to each of the matters released by each party to this Release, each
such party waives all rights under the provisions of Section 1542 of the
California Civil Code and any similar rights in any state or territory of the
United States or under any similar statute or regulation of the United States or
any of its agencies. Section 1542 of the California Civil Code reads 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."
4. Consultation with Counsel.
---------------------------
Each of the Parties acknowledges and represents that he or it has been given an
opportunity to consult with, and has been represented by and has consulted with,
an attorney of his or its own choice in connection with the execution of this
Release, and has relied upon the advice of such attorney in negotiating and
executing this Release.
5. Claims Not Previously Assigned.
---------------------------------
Each of the Parties represents and warrants to each of the other Parties,
respectively, that he or she has not sold, assigned, transferred, conveyed or
otherwise disposed of any claim, demand, cause of action or other matter which
is the subject of his or her release as to such other party, respectively, set
forth above.
6. Binding on Successors.
-----------------------
The provisions of this Release shall inure to the benefit of, and shall be
binding upon, the Parties and each of their respective heirs, legal
representatives and assigns.
7. Assumption of Risk of Differences in Fact.
-----------------------------------------------
Each of the Parties acknowledges that if the facts with respect to which this
Release is executed are found hereafter to be different from what such party now
believes those facts to be, that party accepts and assumes the risk of such
possible differences and agrees that this Release shall be, and shall remain,
effective, notwithstanding such differences.
8. Counterparts.
------------
This Release may be executed in multiple counterparts which taken together shall
constitute the agreement of the Parties.
9. Acknowledgment.
--------------
Each person who signs this Release represents and warrants that he or she: has
carefully read and fully understands this Release and its final and binding
effect; has been afforded sufficient time and opportunity to review this Release
with advisors or attorneys of his or her choice; has had an opportunity to
negotiate with regard to the terms of this Release; is fully competent to manage
his or her own business affairs and to enter into or sign this Release; has
signed this Release knowingly, freely, and voluntarily; and that the only
promises made to induce him or her to sign this Release are those stated herein.
10. Attorneys' Fees and Litigation Costs.
----------------------------------------
If any legal action is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party
shall be entitled to recover such party's reasonable attorneys' and other costs
(including all investigatory, expert and court costs) incurred in such legal
action, in addition to any other relief to which such party may be entitled.
Dated: March 12, 2000 /s/ R. Xxxxxxx Xxxxxx
R. Xxxxxxx Xxxxxx
Dated: March 12, 2000 /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Dated: March 12, 2000 /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
EXHIBIT B
MUTUAL GENERAL RELEASE
------------------------
This Mutual General Release ("Release") made this 12th day of March, 2000,
is entered into by and between Xxxx Xxxxx and his spouse, Xxxxxxxxx Xxxxx
(collectively, "Xxxxx"), and Xxxxx Xxxxxxx ("Xxxxxxx"). Xxxxx and Xxxxxxx are
=
collectively referred to as the "Parties."
The Parties enter into this Release with reference to the following facts:
A. Between approximately October 15, 1998 and March 12, 2000, Xxxxxxx
was employed by Omni Nutraceuticals, Inc. (the "Company") in various capacities,
most recently as the President and Chief Executive Officer;
X. Xxxxxxx and the Company, now desire to negotiate an orderly
termination of Xxxxxxx'x employment with the Company and have entered into an
Agreement of even date herewith (the "Termination Agreement") regarding the
terms of his termination of employment; and
X. Xxxx and Xxxxxxxxx Xxxxx are shareholders and Xxxx Xxxxx was
formerly employed as the President and Chief Executive Officer of the Company.
NOW, THEREFORE, in consideration of the following covenants and agreements
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confirmed, the Parties agree as follows:
1. Release by Xxxxx.
------------------
Except as expressly provided herein and as to the obligations to be performed by
Xxxxxxx under the Termination Agreement and as to any alleged kickback to
Xxxxxxx relating to the Inholtra brand of product, Xxxxx, individually and on
behalf of his respective heirs, legal representatives, and assigns, does hereby
release and forever discharge Xxxxxxx, individually, and his respective heirs,
legal representatives and assigns, of and from all claims, demands, obligations,
liabilities, damages, costs, fees, expenses, actions, causes of action, suits at
law or equity of whatever kind or nature, known or unknown, suspected to exist
or not suspected to exist, anticipated or not anticipated, which have arisen,
are now arising, or hereafter may arise out of or in connection with Xxxxxxx'x
employment by the Company.
2. Release by Xxxxxxx.
--------------------
Except as expressly provided herein, Xxxxxxx, individually, and on behalf of his
heirs, legal representatives and assigns, does hereby release Xxxxx,
individually, and his respective heirs, legal representatives and assigns, of
and from all claims, demands, obligations, liabilities, damages, costs, fees,
expenses, actions, causes of action, suits of law or equity of whatever kind or
nature, known or unknown, suspected to exist, anticipated or not anticipated,
which have arisen, are now arising, or hereafter may arise out of or in
connection with Xxxxxxx'x employment by, and any right to acquire shares in, the
Company.
3. California Civil Code Section 1542 Waiver.
----------------------------------------------
With respect to each of the matters released by each party to this Release, each
such party waives all rights under the provisions of Section 1542 of the
California Civil Code and any similar rights in any state or territory of the
United States or under any similar statute or regulation of the United States or
any of its agencies. Section 1542 of the California Civil Code reads 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."
4. Consultation with Counsel.
---------------------------
Each of the Parties acknowledges and represents that he or it has been given an
opportunity to consult with, and has been represented by and has consulted with,
an attorney of his or its own choice in connection with the execution of this
Release, and has relied upon the advice of such attorney in negotiating and
executing this Release.
5. Claims Not Previously Assigned.
---------------------------------
Each of the Parties represents and warrants to each of the other Parties,
respectively, that he or she has not sold, assigned, transferred, conveyed or
otherwise disposed of any claim, demand, cause of action or other matter which
is the subject of his or her release as to such other party, respectively, set
forth above.
6. Binding on Successors.
-----------------------
The provisions of this Release shall inure to the benefit of, and shall be
binding upon, the Parties and each of their respective heirs, legal
representatives and assigns.
7. Assumption of Risk of Differences in Fact.
-----------------------------------------------
Each of the Parties acknowledges that if the facts with respect to which this
Release is executed are found hereafter to be different from what such party now
believes those facts to be, that party accepts and assumes the risk of such
possible differences and agrees that this Release shall be, and shall remain,
effective, notwithstanding such differences.
8. Counterparts.
------------
This Release may be executed in multiple counterparts which taken together shall
constitute the agreement of the Parties.
9. Acknowledgment.
--------------
Each person who signs this Release represents and warrants that he or she:
has carefully read and fully understands this Release and its final and binding
effect; has been afforded sufficient time and opportunity to review this Release
with advisors or attorneys of his or her choice; has had an opportunity to
negotiate with regard to the terms of this Release; is fully competent to manage
his or her own business affairs and to enter into or sign this Release; has
signed this Release knowingly, freely, and voluntarily; and that the only
promises made to induce him or her to sign this Release are those stated herein.
10. Attorneys' Fees and Litigation Costs.
----------------------------------------
If any legal action is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Agreement, the successful or
prevailing party shall be entitled to recover such party's reasonable attorneys'
and other costs (including all investigatory, expert and court costs) incurred
in such legal action, in addition to any other relief to which such party may be
entitled.
Dated: March 12, 2000 /s/ Xxxx Xxxxx
Xxxx Xxxxx
Dated: March 12, 2000 /s/ Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx
Dated: March 12, 2000 /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
EXHIBIT D
MUTUAL GENERAL RELEASE
----------------------
This Mutual General Release ("Release") made this 12th day of March, 2000,
--
is entered into by and between Xxxxxx Xxxxxxx, Xx. ("Xxxxxxx") and Xxxxx Xxxxxxx
("Xxxxxxx"). Xxxxxxx and Xxxxxxx are collectively referred to as the "Parties."
The Parties enter into this Release with reference to the following facts:
A. Between approximately October 15, 1998 and March 12, 2000, Xxxxxxx
was employed by Omni Nutraceuticals, Inc. (the "Company") in various capacities,
most recently as the President and Chief Executive Officer;
X. Xxxxxxx and the Company, now desire to negotiate an orderly termination
of Xxxxxxx'x employment with the Company and have entered into an Agreement of
even date herewith (the "Termination Agreement") regarding the terms of his
termination of employment; and
X. Xxxxxxx is a shareholder and a director of the Company.
NOW, THEREFORE, in consideration of the following covenants and agreements and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confirmed, the Parties agree as follows:
1. Release by Xxxxxxx.
--------------------
Except as expressly provided herein and as to the obligations to be performed by
Xxxxxxx under the Termination Agreement and as to any alleged kickback to
Xxxxxxx relating to the Inholtra brand of product, Xxxxxxx, individually and on
behalf of his respective heirs, legal representatives, and assigns, does hereby
release and forever discharge Xxxxxxx, individually, and his respective heirs,
legal representatives and assigns, of and from all claims, demands, obligations,
liabilities, damages, costs, fees, expenses, actions, causes of action, suits at
law or equity of whatever kind or nature, known or unknown, suspected to exist
or not suspected to exist, anticipated or not anticipated, which have arisen,
are now arising, or hereafter may arise out of or in connection with Xxxxxxx'x
employment by the Company.
2. Release by Xxxxxxx.
--------------------
Except as expressly provided herein, Xxxxxxx, individually, and on behalf of his
heirs, legal representatives and assigns, does hereby release Xxxxxxx,
individually, and his respective heirs, legal representatives and assigns, of
and from all claims, demands, obligations, liabilities, damages, costs, fees,
expenses, actions, causes of action, suits of law or equity of whatever kind or
nature, known or unknown, suspected to exist, anticipated or not anticipated,
which have arisen, are now arising, or hereafter may arise out of or in
connection with Xxxxxxx'x employment by, and any right to acquire shares in, the
Company.
3. California Civil Code Section 1542 Waiver.
----------------------------------------------
With respect to each of the matters released by each party to this Release, each
such party waives all rights under the provisions of Section 1542 of the
California Civil Code and any similar rights in any state or territory of the
United States or under any similar statute or regulation of the United States or
any of its agencies. Section 1542 of the California Civil Code reads 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."
4. Consultation with Counsel.
---------------------------
Each of the Parties acknowledges and represents that he or it has been given an
opportunity to consult with, and has been represented by and has consulted with,
an attorney of his or its own choice in connection with the execution of this
Release, and has relied upon the advice of such attorney in negotiating and
executing this Release.
5. Claims Not Previously Assigned.
---------------------------------
Each of the Parties represents and warrants to each of the other Parties,
respectively, that he or she has not sold, assigned, transferred, conveyed or
otherwise disposed of any claim, demand, cause of action or other matter which
is the subject of his or her release as to such other party, respectively, set
forth above.
6. Binding on Successors.
-----------------------
The provisions of this Release shall inure to the benefit of, and shall be
binding upon, the Parties and each of their respective heirs, legal
representatives and assigns.
7. Assumption of Risk of Differences in Fact.
-----------------------------------------------
Each of the Parties acknowledges that if the facts with respect to which this
Release is executed are found hereafter to be different from what such party now
believes those facts to be, that party accepts and assumes the risk of such
possible differences and agrees that this Release shall be, and shall remain,
effective, notwithstanding such differences.
8. Counterparts.
------------
This Release may be executed in multiple counterparts which taken together shall
constitute the agreement of the Parties.
9. Acknowledgment.
--------------
Each person who signs this Release represents and warrants that he or she: has
carefully read and fully understands this Release and its final and binding
effect; has been afforded sufficient time and opportunity to review this Release
with advisors or attorneys of his or her choice; has had an opportunity to
negotiate with regard to the terms of this Release; is fully competent to manage
his or her own business affairs and to enter into or sign this Release; has
signed this Release knowingly, freely, and voluntarily; and that the only
promises made to induce him or her to sign this Release are those stated herein.
10. Attorneys' Fees and Litigation Costs.
----------------------------------------
If any legal action is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party
shall be entitled to recover such party's reasonable attorneys' and other costs
(including all investigatory, expert and court costs) incurred in such legal
action, in addition to any other relief to which such party may be entitled.
Dated: March 12, 2000 /s/ Xxxxxx Xxxxxxx, Xx.
Xxxxxx Xxxxxxx, Xx.
Dated: March 12, 2000 /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
