ACCORD AND SATISFACTION AGREEMENT
Exhibit
10.5
THIS
ACCORD AND SATISFACTION AGREEMENT ("Agreement") is made and entered into
in
multiple counterparts this 17th day of July, 2006, by and between Cobalis
Corp.,
a Nevada corporation ("Obligor"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as an individual, St.
▇▇▇▇▇ Trust, organized in Delaware, R and R Holdings, Inc., a Nevada
corporation, R R Development, a California corporation, and Silver Mountain
Promotions, Inc., a Nevada corporation (referred to herein as either "Obligee"
or “Obligees”), or collectively, the “Parties”.
A.
Obligor and the Obligees have, to date, entered into a series of Promissory
Notes (“Promissory Notes”), which bear interest at 10% per annum and are payable
on demand. The specifics of each of the Promissory Notes are set forth herein.
Obligees and Obligor acknowledge and agree that the Promissory Notes shall
be
converted to shares of Obligor’s restricted common stock at the rate of $1.30
per share, fractional shares to be rounded upward.
B.
Obligee R and R Holdings, Inc., and Obligor herewith acknowledge and agree
that
Obligor’s wholly-owned subsidiary BioGentec Inc. owes Obligee R and R Holdings,
Inc., the sum of $512,392 pursuant to that certain consulting contract between
BioGentech Inc. and R and R Holdings, Inc., dated January 1, 2001 (the
“Consulting Contract”), and that R and R Holdings, Inc., herewith agrees to
convert that amount owed into restricted shares of Obligor’s common stock at the
rate of $1.30, or 394,148 shares, any such fractional shares to be rounded
upward.
C.
Obligor
herewith undertakes to amend its Articles of Incorporation to authorize the
issuance of up to 100,000,000 shares of Obligor’s $.001 par value common stock,
pursuant to the outcome of a duly noticed and held meeting of its shareholders,
conducted as soon as practicable and in compliance with all applicable state
laws and federal securities regulations.
D.
Obligor and Obligees hereby acknowledge and agree that after the stated
performance hereunder has been rendered by Obligor, the Promissory Notes,
including any and all interest thereon, shall be absolutely and completely
extinguished.
E.
Obligor wishes to tender, and Obligees wish to accept, the consideration
more
particularly described herein, on the terms and subject to the conditions
specified in this Agreement and in full and complete satisfaction of the
Promissory Notes and all current obligations owing under the Consulting
Agreement.
1
NOW,
THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE WHICH RECITALS
SHALL
BE DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED
IN
THIS AGREEMENT, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
1.
Consideration. As consideration for the complete and full discharge of
the Promissory Notes and all amounts owed under the Consulting Agreement and
subject in all instances to each of the terms, conditions, provisions and
limitations specified in this Agreement, Obligor will deliver or cause to be
delivered on or before that date which is 10 days following the filing of
articles of amendment to the Obligor’s Articles of Incorporation with the
Secretary of State of Nevada, effecting an increase in the Obligor’s authorized
common stock to 100,000,000 shares, subject to the covenants, terms and
conditions contained herein, restricted shares of Obligor’s $.001 par value
common stock at the rate of $1.30 per share per dollar owed, including any
and
all interest owing to Obligees (the “Consideration”).
The
Parties agree that the Consideration shall be issued as follows;
|
Obligee
|
Principal
Amount
|
Accrued
Interest
through
6/30/06
|
Total
Owed
as
of
6/30/06
|
Conversion
Rate
|
Number
of
shares
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
an
individual
|
$956,611
|
$127,509
|
$1,084,120
|
$1.30
|
833,938
|
|
St.
▇▇▇▇▇ Trust
|
$1,585,500
|
$211,335
|
$1,796,835
|
$1.30
|
1,382,180
|
|
R
and R Holdings
|
$471,507
|
$62,848
|
$534,355
|
$1.30
|
411,042
|
|
Silver
Mountain
Promotions,
Inc.
|
$922,103
|
$122,909
|
$
1,045,012
|
$1.30
|
803,855
|
|
R
R
Development
|
$170,000
|
$51,838
|
$
221,838
|
$1.30
|
170,644
|
|
Total
|
$4,105,721
|
$576,440
|
$4,682,161
|
3,601,662
|
2
|
Obligee
|
Consulting
Fees Owed
|
Conversion
Rate
|
Number
of shares
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
an
individual
|
$512,392
|
$1.30
|
394,147
|
2.1
Release of Obligor. Obligees, on behalf of
themselves, their agents, relatives, associates, representatives, employees,
attorneys, joint venturers, general and limited partners, predecessors,
affiliates, heirs, successors and assigns, and all persons acting by, through,
under or in concert with any of them, hereby irrevocably and forever releases,
acquits and discharges the Obligor and its agents, officers, directors,
shareholders, employees, attorneys, joint venturers, general and limited
partners, successors, predecessors, parent and subsidiary corporations,
affiliates, attorneys, accountants, representatives, contractors, and assigns
and all persons acting by, through, under or in concert with any of them, and
the assets, properties, rights, interests, choses-in-action, goodwill and other
properties, tangible and intangible, of Obligor, from any and all claims,
charges, complaints, injuries, liabilities, obligations, losses, debts, suits,
demands, grievances, costs, expenses (including, but not limited to, attorneys'
fees, receiver fees, accountant fees, and other professional and expert fees)
rights, actions and causes of action, of any nature or manner whatsoever, known
and unknown, suspected and unsuspected, contingent or fixed, liquidated or
unliquidated, past, present or future, including, but not limited to, rights
arising out of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any tort, or any
federal, state or other governmental statute, regulation, law or ordinance
from
the beginning of time to the date of execution of this Agreement, which Obligees
may have as to Obligor, Obligor’s assets, properties, rights, interests,
choses-in-action, goodwill and other properties, tangible and intangible, and
as
to Obligor's agents, officers, directors, shareholders, employees, joint
venturers, affiliates, general and limited partners, predecessors, parent and
subsidiary corporations, accountants, attorneys, contractors, representatives,
successors and assigns and all persons acting by, through, under or in concert
with any of them.
2.2
Exceptions. The only exceptions to the releases specified in this
Agreement are the obligations created and evidenced by the terms, conditions
and
provisions of this Agreement, as specified expressly in this
Agreement.
3
2.3
Assumption of Risk. It is understood that there is a risk that,
subsequent to the execution and delivery of this Agreement, losses, damages
or
injuries might be incurred which are unknown or unanticipated, for whatever
reason, at the time of the execution and delivery of this Agreement. It is
none
the less specifically agreed that the releases specified in this Agreement
are
fully and completely effective regardless of any present lack of knowledge
on
the part of any party as to any claims, charges, complaints, liabilities,
obligations, debts, suits, demands, grievances, losses, damages, injuries,
costs, expenses, rights, actions or causes of action, or as to any possible
fact
or circumstance relating in any manner to the matters for which the releases
specified in this Agreement are made. Obligees voluntarily, intentionally and
expressly waive the benefits and provisions of Section 1542 of the Civil Code
of
the State of California, and any similar law of any state or territory of the
United States of America or other jurisdiction. Specifically, that Section
1542
specifies 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."
3.
Governmental Rules and Regulations. The provisions of this Agreement
are subject to any and all present and future orders, rules and regulations
of
any duly constituted authority having jurisdiction over the transaction
contemplated by the provisions of this Agreement.
4.
Notices. All notices, requests, claims, demands and other
communications to be given pursuant to the provisions hereof by any party to
this Agreement to any other party to this Agreement may be effected by personal
delivery in writing or by registered or certified mail, postage prepaid, return
receipt requested, and shall be deemed communicated as of one business day
after
mailing. Mailed notices shall be addressed as set forth below; provided,
however, each party to this Agreement may change its address by written notice
in accordance with the provisions of this paragraph:
|
If
to Obligees
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
St.
▇▇▇▇▇
Trust
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4
RR
Development
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
R
and R
Holdings, Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Silver
Mountain Promotions, Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
If
to Obligor
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
5.
Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties to this Agreement
with respect to the subject matter hereof and contains all the covenants and
agreements between said parties with respect thereto, and each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting
on
behalf of any party, which are not embodied herein, and that any other
agreement, statement, or promise concerning the subject matter set forth in
this
Agreement shall be of no force or effect except in a subsequent modification
in
writing signed by the party to be charged.
6.
Severability. In the event any part of this Agreement, for any reason,
is declared to be invalid, such decision shall not affect the validity of any
remaining portion of this Agreement, which remaining portion shall remain in
full force and effect as if this Agreement had been executed with the invalid
portion thereof eliminated, and it is hereby declared the intention of the
parties to this Agreement that they would have executed the remaining portion
of
this Agreement without including any such part, parts, or portion which, for
any
reason, may be hereafter declared invalid.
7.
Captions and Interpretations. Captions of the paragraphs of this
Agreement are for convenience and reference only, and the words contained in
those captions shall in no way be held to explain, modify, amplify or aid in
the
interpretation, construction or meaning of the terms, conditions and provisions
of this Agreement. The language and all parts to this Agreement, in all cases,
shall be construed in accordance with the fair meaning of that language and
those parts and as if that language and those parts were prepared by all parties
and not strictly for or against any party. Each party and counsel for such
party
have reviewed this Agreement and participated in the negotiation and drafting
of
this Agreement. The rule of construction, which requires a court to resolve
any
ambiguities against the drafting party, shall not apply in interpreting the
provisions of this Agreement.
5
8.
Further Assurance. Each party to this Agreement hereby agrees to take
any and all action necessary or appropriate to execute and discharge its
responsibilities and obligations created pursuant to the provisions of this
Agreement and to further effectuate and carry out the intents and purposes
of
this Agreement and the transactions contemplated hereby.
9.
Number and Gender. Whenever the singular number is used in this
Agreement, and when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter
genders, and vice versa; and the word "person" shall include individual,
company, sole proprietorship, corporation, joint venture, association, joint
stock company, fraternal order, cooperative, league, club, society,
organization, trust, estate, governmental agency, political subdivision or
authority, firm, municipality, congregation, partnership, or other form of
entity.
10.
Execution in Counterparts. This Agreement may be executed in several
counterparts and, when so executed, it shall constitute one agreement binding
all parties to this Agreement, notwithstanding that all parties to this
Agreement are not signatory to the original and same counterpart. Facsimile
signatures shall be as valid as original signatures for purposes of executing
this Agreement.
11.
Successors and Assigns. This Agreement and each of its provisions shall
obligate the heirs, executors, administrators, successors, and assigns of each
of the parties hereto. No provisions of this paragraph, however, shall be a
consent to the assignment or delegation by any party to this Agreement of its
respective rights and obligations created pursuant to the provisions of this
agreement.
6
IN
WITNESS WHEREOF, the parties to this Accord and Satisfaction Agreement have
executed in duplicate this Agreement as of the date first above
written.
St.
▇▇▇▇▇
Trust, a Delaware Trust
R R
Development, a California corporation
R and
R Holdings, Inc, a Nevada corporation
Silver
Mountain Promotions, Inc., a Nevada corporation
▇▇▇▇▇
▇▇▇▇▇▇▇▇, individually
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Power of
Attorney for R R
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇ on behalf of each and all
Obligees
|
||
|
a
Nevada corporation, as Obligor
|
||
| |
|
|
| By: |
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer |
||
| |
|
|
| By: |
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Financial Officer |
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7
GENERAL
POWER OF ATTORNEY
I,
▇▇▇▇▇
▇▇▇▇▇▇▇▇, residing at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereby
appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
as
my Attorney-in-Fact ("Agent").
I
hereby
revoke any and all general powers of attorney that previously have been signed
by me. However, the preceding sentence shall not have the effect of revoking
any
powers of attorney that are directly related to my health care that previously
have been signed by me.
My
Agent
shall have full power and authority to act on my behalf. This power and
authority shall authorize my Agent to manage and conduct all of my affairs
and
to exercise all of my legal rights and powers, including all rights and powers
that I may acquire in the future. My Agent's powers shall include, but not
be
limited to, the power to:
|
1.
|
Open,
maintain or close bank accounts (including, but not limited to,
checking
accounts, savings accounts, and certificates of deposit), brokerage
accounts, and other similar accounts with financial institutions.
|
|
a.
|
Conduct
any business with any banking or financial institution with respect
to any
of my accounts, including, but not limited to, making deposits
and
withdrawals, obtaining bank statements, passbooks, drafts, money
orders,
warrants, and certificates or vouchers payable to me by any person,
firm,
corporation or political entity.
|
|
b.
|
Perform
any act necessary to deposit, negotiate, sell or transfer any note,
security, or draft of the United States of America, including U.S.
Treasury Securities.
|
|
c.
|
Have
access to any safe deposit box that I might own, including its
contents.
|
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2.
|
Sell,
exchange, buy, invest, or reinvest any assets or property owned
by me.
Such assets or property may include income producing or non-income
producing assets and property.
|
|
3.
|
Purchase
and/or maintain insurance, including life insurance upon my life
or the
life of any other appropriate person.
|
|
4.
|
Take
any and all legal steps necessary to collect any amount or debt
owed to
me, or to settle any claim, whether made against me or asserted
on my
behalf against any other person or entity.
|
|
5.
|
Enter
into binding contracts on my behalf.
|
8
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6.
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Exercise
all stock rights on my behalf as my proxy, including all rights
with
respect to stocks, bonds, debentures, or other investments.
|
|
7.
|
Maintain
and/or operate any business that I may own.
|
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8.
|
Employ
professional and business assistance as may be appropriate, including
attorneys, accountants, and real estate agents.
|
|
9.
|
Sell,
convey, lease, mortgage, manage, insure, improve, repair, or perform
any
other act with respect to any of my property (now owned or later
acquired)
including, but not limited to, real estate and real estate rights
(including the right to remove tenants and to recover possession).
This
includes the right to sell or encumber any homestead that I now
own or may
own in the future.
|
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10.
|
Prepare,
sign, and file documents with any governmental body or agency,
including,
but not limited to, authorization to:
|
|
a.
|
Prepare,
sign and file income and other tax returns with federal, state,
local, and
other governmental bodies.
|
|
b.
|
Obtain
information or documents from any government or its agencies, and
negotiate, compromise, or settle any matter with such government
or agency
(including tax matters).
|
|
c.
|
Prepare
applications, provide information, and perform any other act reasonably
requested by any government or its agencies in connection with
governmental benefits (including military and social security
benefits).
|
|
11.
|
Make
gifts from my assets to members of my family and to such other
persons or
charitable organizations with whom I have an established pattern
of
giving. However, my Agent may not make gifts of my property to
the Agent.
|
|
12.
|
Transfer
any of my assets to the trustee of any revocable trust created
by me, if
such trust is in existence at the time of such transfer.
|
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13.
|
Disclaim
any interest which might otherwise be transferred or distributed
to me
from any other person, estate, trust, or other entity, as may be
appropriate.
|
This
Power of Attorney shall be construed broadly as a General Power of Attorney.
The
listing of specific powers is not intended to limit or restrict the general
powers granted in this Power of Attorney in any manner.
Any
power
or authority granted to my Agent under this document shall be limited to
the
extent necessary to prevent this Power of Attorney from causing: (i) my income
to be taxable to my Agent, (ii) my assets to be subject to a general power
of
appointment by my Agent, and (iii) my Agent to have any incidents of ownership
with respect to any life insurance policies that I may own on the life of
my
Agent.
9
My
Agent
shall not be liable for any loss that results from a judgment error that
was
made in good faith. However, my Agent shall be liable for willful misconduct
or
the failure to act in good faith while acting under the authority of this
Power
of Attorney.
I
authorize my Agent to indemnify and hold harmless any third party who accepts
and acts under this document.
My
Agent
shall be entitled to reasonable compensation for any services provided as
my
Agent. My Agent shall be entitled to reimbursement of all reasonable expenses
incurred in connection with this Power of Attorney.
My
Agent
shall provide an accounting for all funds handled and all acts performed
as my
Agent, if I so request or if such a request is made by any authorized personal
representative or fiduciary acting on my behalf.
This
Power of Attorney shall become effective immediately and shall not be affected
by my disability or lack of mental competence, except as may be provided
otherwise by an applicable state statute. This is a Durable Power of Attorney.
This Power of Attorney shall continue effective until my death. This Power
of
Attorney may be revoked by me at any time by providing written or verbal
notice
to my Agent.
Dated
June 19th,
2006 at
Irvine, California.
/s/▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
WITNESS'
SIGNATURE:
/s/
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
|
WITNESS'
SIGNATURE:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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STATE
OF CALIFORNIA ) ss.
COUNTY
OF ORANGE )
10
On
this 19th
day
of June, 2006, before me, Don
S.
Park, Notary Public, personally
appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
proved to me on the basis of satisfactory evidence to be the person whose
name
is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument
the person and the entity upon behalf of which the person acted, executed
the
instrument.
Witness
my hand and official seal.
/s/
Don S. Park
Notary
Public
[stamp]
Don
S.
Park
Commission
# 1580958
Notary
Public - California
Orange
County
My
Comm.
Expires May 21, 2009