EXECUTION COPY
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AGREEMENT
THIS AGREEMENT made this 11th day of March, 2000 by and among Omni
Nutraceuticals, Inc., a Utah corporation, (the "Company") and R. Xxxxxxx Xxxxxx
("Xxxxxx") and his spouse, Xxxxxx Xxxxxxx, both individuals residing at 0000
Xxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Xxxxxx is currently employed as the Chairman of the Board of
Directors of the Company ("Board") pursuant to an Employment Agreement dated as
of June 30, 1998 (the "Employment Agreement"); and
WHEREAS, Xxxxxx, a co-Founder of the Company, now desires to terminate any
further role in the management of the Company for personal reasons, relinquish
his voting rights and is agreeable to the termination of his Employment
Agreement, all upon the following terms and conditions.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confirmed, the parties hereto intending to be legally bound
hereby agree as follows:
1. Withdrawal from Management. Effective on the date on which all of the
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conditions set forth in Section 2 hereof to his withdrawal from the management
of the Company are satisfied or waived by Xxxxxx in writing (the "Effective
Date") and subject to the remaining terms and conditions hereof, Xxxxxx hereby
agrees to:
1.1 resign from the Board; and
1.2 terminate his Employment Agreement.
2. Conditions to Xxxxxx'x Obligations. Xxxxxx'x agreements set forth in
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Section 1 hereof are conditioned upon the prior satisfaction on or prior to the
Effective Date (as hereinafter defined) of the following conditions precedent:
2.1 The execution and delivery by the Company of an Indemnity Agreement in
substantially the form of Exhibit A attached hereto and made a part hereof.
2.2 In settlement of the remaining obligations owed Xxxxxx under the
Employment Agreement the extension of the exercise and expiration dates of all
of his existing stock options to purchase 1,003,029 shares ("Option Shares") of
the Company's common stock ("Common Stock") to the seventh anniversary of the
Effective Date.
2.3 The receipt by Xxxxxx of $1,500,000 in net proceeds from the sale of
shares of Common Stock owned by Xxxxxx at a price of $3.00 per share in one or
more transactions which will not be required to be aggregated with sales made by
Xxxxxx pursuant to Rule 144 (as the same may be in effect from time to time,
"Rule 144") promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
2.4 American Equities LLC and Corporate Financial Enterprises, Inc.
(collectively, the "Investors") shall execute and deliver (i) the amendment to
the terms of that certain Lock-Up Agreement dated as of January 24, 2000
attached hereto as Exhibit B and (ii) the legally binding Term Sheet attached
hereto as Exhibit C.
2.5 At or prior to the Effective Date, the Company shall deliver to Xxxxxx
an executed copy of an opinion of counsel to the Company in the form attached
hereto as Exhibit D.
2.6 Each of the Investors shall execute and deliver to Xxxxxx a General
Release in the Form attached hereto as Exhibit E.
2.7 The Company and Xxxxxx shall enter into the Registration Rights
Agreement set forth as Exhibit F attached hereto.
2.8 The Voting Agreement dated October 8, 1999 by and between Xxxxxx and
Xxxx and Xxxxxxxxx Xxxxx shall have been terminated.
2.9 Xxxx Xxxxx and Xxxxxx shall have executed and delivered to each other a
General Release in the form attached hereto as Exhibit G.
3. Covenants. The parties hereto hereby covenant and agree, as follows:
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3.1 Each party, and his and its respective heirs, legal representatives,
successors and assigns shall not, and each party shall cause his and its
respective affiliates (as such term is defined in Rule 405 promulgated under the
Securities Act) not to, commence, support or assert any claim, action, cause of
action, suit, investigation or other legal proceeding against any other party
hereto and his or its heirs, spouse, legal representatives, assigns, agents,
attorneys and employees arising from or attributable to any act, matter or thing
now existing or occurring. Nothing in this Agreement, however, shall be
construed or interpreted to prohibit Xxxxxx, his spouse or his heirs, legal
representatives or assigns from asserting any claim, action, cause of action,
suit, investigation or other legal proceeding against the Company or its
affiliates, successors, assigns, agents, attorneys and employees arising from or
attributable to any alleged breach of this Agreement, the matters contemplated
hereby or the ancillary agreements and other documents executed and delivered in
connection herewith (collectively, "Ancillary Agreements"). Further, nothing
in this Agreement shall be construed or interpreted to abrogate or adversely
affect Xxxxxx'x, his spouse's or his heirs', legal representatives' or assigns'
right to participate as shareholders in any recovery obtained in connection with
any class action, suit or proceeding commenced against the Company or any of its
affiliates or management.
3.2 (a) The Company shall not, directly or indirectly, impede or impair the
transfer of Xxxxxx'x or his spouse's shares of Common Stock in a timely manner
in accordance with the provisions of all federal and state securities laws,
rules and regulations, including the Securities Act and Rule 144, and, in
connection therewith, after the Effective Date, based upon the opinion of
counsel referred to in Section 2.5 hereof, the Company shall confirm in writing
to the Transfer Agent that neither Xxxxxx nor his spouse is deemed to be a
"controlling person" as defined in Securities Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and the rules and regulations
promulgated thereunder or an "affiliate" as defined in Rule 144 and that his
and his spouse's shares of Common Stock are not deemed to be owned by an
affiliate of the Company. In connection with the foregoing, on the ninetieth
(90th) day after the Effective Date, the Company and the Transfer Agent shall
issue one or more new certificates representing all of Xxxxxx'x and his spouse's
shares of Common Stock owned of record by him and his spouse on the Effective
Date without any restrictive legend in substitution for any certificates
currently registered in Xxxxxx'x name or in the name of his spouse, Xxxxxx
Xxxxxxx, which may bear a restrictive legend. Immediately after the second
anniversary of the Effective Date (unless Xxxxxx has taken any intervening
action such that he is then, and at any time during the period of at least
ninety (90) days prior thereto has been an affiliate of the Company, as defined
in Rule 144), or such earlier date or dates on which Xxxxxx, or his assignee or
someone acting on his behalf notifies the Company or the Transfer Agent that his
(or such assignees') shares have been sold, or are proposed to be sold pursuant
to an effective registration statement under the Securities Act or the
provisions of Rule 144, the Company and the Transfer Agent shall issue one or
more new certificates evidencing such shares without any restrictive legends in
substitution for any certificates bearing any such legends.
(b) Damages, which would result from the breach of this Section, are
impracticable and extremely difficult to ascertain under the circumstances
existing as of the date of this Agreement. In the event the Company
intentionally or negligently delays or impedes the issuance, clearance or
transfer of such shares within five business days after a written request
therefor has been delivered to the Company together with evidence that the
relevant certificates have been delivered to the Transfer Agent with
instructions for reissuance, clearance or transfer (the "Certificate Request"),
the Company agrees to pay to Xxxxxx or his designee an amount equal to the
greater of (i) $10,000 per business day, (ii) the product of (x) the last sale
price on the date the certificates are properly issued and delivered to Xxxxxx
or his designee, less the last sale price on the date of the Certificate
Request, multiplied by (y) the number of shares represented by such
certificate(s), or (iii) the quotient of (x) the last reported sale price on the
day prior to the date of the Certificate Request, multiplied by the number of
shares of Common Stock issuable to Xxxxxx or his designee in accordance with the
Certificate Request, divided by (y) 200 (the "Delay Damages"), for each business
day after the fifth business day following the delivery of the Certificate
Request to the Company through and including the day such certificates (without
legend or restriction) are delivered to Xxxxxx or his designee at the address
set forth in such Certificate Request or are otherwise cleared or transferred;
provided, however, that the maximum amount of the Delay Damages that the Company
will be required to pay Xxxxxx or his designee in accordance with the foregoing
shall be $750,000.00 per month. LIQUIDATED DAMAGES IN THE MAXIMUM AMOUNT OF
$750,000 PER MONTH REPRESENT A REASONABLE ESTIMATE OF DAMAGES. THE PAYMENT OF
SUCH AMOUNT AS LIQUIDATED DAMAGES FOR THE BREACH OF THIS PARAGRAPH IS NOT
INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE
SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES PURSUANT
TO CALIFORNIA CIVIL CODE SECTION 1671, 1676, AND 1677. THE LIQUIDATED DAMAGES
SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR THE COMPANY'S BREACH OF THIS
PARAGRAPH. IN THE EVENT THE COMPANY RESTRICTS OR DELAYS THE TRANSFER OR
CLEARANCE OF SUCH CERTIFICATES BY XXXXXX OR HIS DESIGNEE (WHETHER BY STOP
TRANSFER ORDER, UNREASONABLE DELAY OR OTHERWISE), THE COMPANY SHALL PAY TO
XXXXXX OR HIS DESIGNEE THE DELAY DAMAGES FOR EACH BUSINESS DAY OF SUCH
RESTRICTION OR DELAY. TO THE EXTENT NECESSARY TO EFFECT THE FOREGOING, THE
COMPANY AGREES (I) TO FILE IN A TIMELY MANNER AND KEEP CURRENT INFORMATION ON
FILE WITH THE SECURITIES AND EXCHANGE COMMISSION AS PROVIDED IN RULE 144(C) AND
(II) TO KEEP ANY REGISTRATION STATEMENT PURSUANT TO WHICH XXXXXX'X SHARES HAVE
BEEN REGISTERED FOR RESALE UNDER THE SECURITIES ACT CURRENT IN ACCORDANCE WITH
THE REGISTRATION RIGHTS AGREEMENT. THE PARTIES HAVE SET FORTH THEIR INITIALS
BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGE PROVISION IN THIS
PARAGRAPH.
SIGNATURES
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OMNI NUTRACEUTICALS, INC. BY: /s/ Xxxx Xxxxx
R. XXXXXXX XXXXXX /s/ R. Xxxxxxx Xxxxxx
XXXXXX XXXXXXX /s/ Xxxxxx Xxxxxxx
3.3 Until the fifth anniversary of the Effective Date, R. Xxxxxxx Xxxxxx and
his spouse, Xxxxxx Xxxxxxx, hereby irrevocably agree to vote all of their
respective shares of Common Stock which they own of record on the record date
for a vote (or solicitation of consents) of the Company's shareholders, on the
same basis as the remaining shareholders of the Company vote their shares of
capital stock (or issue consents) on all matters on which the shareholders of
the Company are required or requested to vote (or issue consents), whether at a
meeting or by written consent. Accordingly, their votes will be apportioned in
the same ratio that the shares of other shareholders are voted (or consented to)
in favor or against or abstain on any matter on which the recorded vote (or
written consents) of the shareholders is taken (or solicited and obtained). The
foregoing voting agreement is being entered in compliance with the provisions of
Section 16-10a-731 of the Utah Business Corporation Code Act and shall be
personal to Xxxxxx and his spouse Xxxxxx Xxxxxxx only and shall not bind any
bona fide third party transferee of their shares. By their execution hereof and
in order to secure the obligations of R. Xxxxxxx Xxxxxx and his spouse, Xxxxxx
Xxxxxxx, hereunder, each of R. Xxxxxxx Xxxxxx and Xxxxxx Xxxxxxx hereby
irrevocably constitutes and appoints Xxxxxx Xxxxxxx, Xx. as their true and
lawful attorney-in-fact to: (i) vote, in accordance with the foregoing voting
agreement, all shares of Common Stock which they may be entitled to vote upon
the election of directors and any other matter that may be properly presented
for a vote of shareholders at any annual or special meeting of shareholders of
the Company, and (ii) vote, in accordance with the foregoing voting agreement,
by means of a written consent of shareholders, all shares of Common Stock which
they may be entitled to vote upon the election of directors and any other matter
that may be properly presented for the consent of shareholders by written
consent in lieu of a vote taken at any annual or special meeting of shareholders
of the Company and (iii) execute, acknowledge, swear to and file in the name,
place and stead of R. Xxxxxxx Xxxxxx and/or Xxxxxx Xxxxxxx any consent,
approval, or other documents to be executed by the shareholders in connection
with such votes. The Proxy granted hereby is irrevocable and shall be deemed
coupled with an interest in the above described voting agreement for the term
stated therein and it shall survive either of R. Xxxxxxx Xxxxxx'x or Xxxxxx
Xxxxxxx'x disability and insolvency.
3.4 Xxxxxx further agrees that he shall not seek to interfere in, or contact
the management of the Company (except as may be permitted under the Registration
Rights Agreement of even date herewith) or to hold office in the Company or
otherwise to influence the composition of the Board or the management of the
Company or its affairs, including, without limitation, by commencing or publicly
supporting any solicitation of proxies whose purpose is to change the management
of the Company, provided, however, nothing in this Agreement shall prohibit
Xxxxxx from responding to requests for information from the Company or its
officers or directors.
3.5 Promptly after the Effective Date but in no event later than March 14,
2000, the Company will furnish to Xxxxxx a letter from the Transfer Agent for
the Common Stock ("Transfer Agent") acknowledging the provisions of Section 3.2
hereof and concurring in the opinion of counsel to the Company referred to in
Section 2.5 hereof.
4. Releases.
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4.1 Notwithstanding the following release, all of the rights and remedies
created by this Agreement and the ancillary agreements executed and delivered in
accordance herewith are preserved. For and in consideration of the sum of $10.00
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confirmed, each of the parties hereto, including
each individual consenting to this Agreement and their respective heirs, legal
representatives, successors in interest and assigns (collectively, the
"Releasor") hereby releases and forever discharges the other party hereto,
including each individual consenting to this Agreement, and his heirs, legal
representatives, agents, attorneys, employees, shareholders and assigns
(collectively, the "Releasee") of and from any and all actions, causes of
action, claims, charges, demands, remedies, obligations, liabilities, losses,
damages, penalties, assessments, diminution of value, costs and expenses
(including reasonable attorney's fees and expenses), known or unknown,
foreseeable or unforeseeable, present or contingent, arising at law or in equity
(collectively, "Claims") which the Releasor has or may in the future have
against the Releasee in any manner on account of any matter, cause or thing
arising prior to the date of this Agreement, including, without limitation,
Claims arising under the Employment Agreement.
4.2 This Agreement shall not be construed more strictly against either the
Releasee or the Releasor merely by virtue of the fact that the same has been
prepared by the Releasee or the Releasor or their respective counsel, it being
recognized that the Releasor and the Releasee have contributed substantially and
materially to the preparation of this instrument. THE RELEASOR ACKNOWLEDGES
THAT HE HAS THOROUGHLY READ AND REVIEWED THE TERMS AND PROVISIONS OF THIS
AGREEMENT AND IS FAMILIAR WITH SAME, THAT THE TERMS AND PROVISIONS CONTAINED
HEREIN ARE CLEARLY UNDERSTOOD BY HIM AND HAVE BEEN FULLY AND UNCONDITIONALLY
CONSENTED TO BY HIM, AND THAT HE HAS HAD FULL BENEFIT ADVICE OF COUNSEL OF HIS
OWN SELECTION IN REGARD TO UNDERSTANDING THE TERMS, MEANING AND EFFECT OF THIS
AGREEMENT.
4.3 The parties hereto hereby expressly waive and relinquish all rights and
benefits that they may hold against each other, afforded by Section 1542 of the
Civil Code of California or any other state laws of similar language or effect,
and they expressly understand and acknowledge the significance and consequences
of such specific waiver of Section 1542, which provides:
"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."
Thus, notwithstanding the provisions of Section 1542, and for the purpose
of implementing a full and complete release and discharge of all their claims,
the parties expressly acknowledge that this Agreement is also intended to
include in its effect, without limitation, all claims which they do not know or
expect to exist in their favor, that the Releasor may hold against the Releasee,
or that Releasee may hold against the Releasor, at the time of execution hereof,
and that this Agreement contemplates the extinguishment of any such claim or
claims. The parties hereto understand and agree that this is a waiver of rights
and benefits that they may hold against each other under Section 1542, and that
this is a material term of this Agreement, without which the parties hereto
would not have given the consideration to each other stated herein.
4.4 The Company hereby acknowledges that Xxxxxxxxx Xxxxxxxx Xxxxx & Xxxxx
LLP ("Xxxxxxxxx"), which has represented the Company on a regular basis, has
represented Xxxxxx and his spouse in connection with the negotiation,
preparation, execution and delivery of this Agreement and the Ancillary
Agreements (the "Xxxxxx Representation"). The Company hereby represents and
warrants that it has retained and has been represented by Xxxxxx & Xxxxxxx in
connection with the negotiation, preparation, execution and delivery of this
Agreement and such Ancillary Agreements. The Company hereby waives, and agrees
not to assert the existence of, any and all actual and potential conflicts of
interests which may be attributable to or which may arise out of the Xxxxxx
Representation by Xxxxxxxxx, including, without limitation, as a basis for
excusing the performance of the Company's duties and obligations under this
Agreement and the Ancillary Agreements.
5. Termination.
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5.1 This Agreement shall terminate on the date (the "Termination Date") to
occur on the earlier of the following:
(i) the mutual written agreement of the parties hereto; or
(ii) the failure to satisfy the conditions precedent to Xxxxxx'x obligations by
the parties obligated to perform such conditions within ten (10) days after the
date hereof unless extended in writing by Xxxxxx, in his sole and arbitrary
discretion.
5.2. In the event of the termination of this Agreement, with the exception
of the provisions of Sections 5, 6.2, 6.8 and 6.10 hereof, which shall continue
in full force and effect, this Agreement shall be of no further force and
effect, including, without limitation, the provisions of Sections 3.1 and 4, and
each of the parties hereto shall be entitled to assert any and all rights and
remedies, which they have had or may now or hereafter possess, at law or in
equity.
6. Miscellaneous.
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6.1. Press Release. The Company shall issue a press release on or promptly
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after the Effective Date in the form annexed hereto as Exhibit H.
6.2. Expenses. The Company shall reimburse Xxxxxx'x costs and expenses,
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including, without limitation, all reasonable attorneys fees and expenses,
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement, the Ancillary Agreements and the transactions contemplated
hereby, not to exceed $30,000 in aggregate amount.
6.3. 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 one (1) day (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 Xxxxxx and his spouse, to: 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
If to the Company, to: Omni Nutraceuticals, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
, or to such other address, as either party shall have designated by like notice
to the other party hereto (except that a notice of change of address shall only
be effective upon receipt).
6.4. Applicable Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of California without regard to its
choice of law principles.
6.5. Waivers; Gender, etc. The failure of any party hereto at any time to
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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 party 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 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. As used herein, words in the masculine gender
shall include the feminine and neuter genders and vice versa and the meaning
ascribed to terms defined herein shall be applicable to both the singular and
the plural forms of such terms.
6.6. Assignment and Assumption. This Agreement and Xxxxxx'x and his
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spouse's rights, interests or obligations hereunder may not be assigned (other
than by operation of law, final divorce decree or other domestic relations order
) by Xxxxxx or his spouse without the prior written consent of the Company,
which shall not be unreasonably withheld; provided, however, so long as Xxxxxx
continues to own shares of Common Stock he shall remain subject to the
provisions of Section 3 of this Agreement, and provided, further, however,
nothing in the foregoing or this Agreement shall affect or limit Xxxxxx'x or his
spouse's rights to sell, offer to sell, solicit offers to purchase, pledge,
transfer or otherwise dispose of his or her shares of Common Stock, except as
set forth in the Lock-Up Agreement, as amended, and the Registration Rights
Agreements attached hereto as Exhibits B and F, respectively. Prior to any
merger, consolidation or other business combination wherein the Company shall
not be survivor or the sale of all or substantially all of the assets of the
Company, the Company shall secure the agreement of the other party to any such
transaction to assume the Company's obligations hereunder and to be bound by the
provisions hereof.
6.7 Binding Effect; Benefits. This Agreement shall inure to the benefit of,
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and shall be binding upon, the parties hereto and their respective heirs, legal
representatives and permitted assigns. Nothing herein contained, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective heirs, legal representatives and permitted assigns, any rights
or remedies under or by reason of this Agreement.
6.8 Amendment. This Agreement may only be amended by a written instrument
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executed by all of the parties hereto.
6.9 Severability. Any provision of this Agreement which is held by a court
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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.
6.10 Entire Agreement. This Agreement (together with the other agreements
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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.
6.11 Headings. The headings contained herein are for the sole purpose of
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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.
6.12 Execution in Counterparts. This Agreement may be executed in one or
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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.
6.13 Further Assurances. Each party hereto hereby agrees, to execute and
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deliver, and to cause their respective spouses to execute and deliver to each
other all such further agreements, instruments or other documents as may
reasonably be requested in order to implement the provisions of this Agreement.
6.14 Specific Performance. The parties hereby acknowledge and agree that the
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failure of the parties 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, the parties hereto, 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 the parties each hereby waive
any right to require any bond or other security to be paid or furnished by any
of them in connection with any application for such relief.
6.15 Representations and Warranties. Each of the parties hereto hereby
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represents and warrants to the other parties that the execution, delivery and
performance of this Agreement and the Ancillary Agreements contemplated hereby
to which they are parties is a legal, valid and binding obligation of such
party, enforceable in accordance with its terms except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to creditors' rights generally and to general
principles of equity. Xxxxxx and his spouse each have the legal capacity and
the Company has all necessary corporate power and authority to execute, deliver
and perform this Agreement and such Ancillary Agreements to which they are
parties. The execution, delivery and performance by the Company of this
Agreement and such Ancillary Agreements to which it is a party have been duly
and validly authorized by all necessary corporate action.
6.16 Compliance with Law. Nothing contained herein shall require the
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Company or Xxxxxx to take any action which would be a violation of applicable
law or the rules of the Securities and Exchange Commission, or fail to take any
action which failure would be a violation of applicable law. Notwithstanding
the foregoing or anything in this Agreement to the contrary, Xxxxxx and his
spouse shall be entitled to sell their respective shares pursuant to Rule 144.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
/s/ R. Xxxxxxx Xxxxxx
R. Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
OMNI NUTRACEUTICALS, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
