<PAGE>
As filed with the Securities and Exchange Commission on September 5, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VITAFORT INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 68-0110509
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
1800 AVENUE OF THE STARS, SUITE 480
LOS ANGELES, CALIFORNIA 90067
(Address of principal executive offices) (Zip Code)
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND GERRY ASTOR
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND PAUL COWEN
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND LINDA DELLAVECHIA
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND MARK DODGE
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND MICHAEL DONAHUE
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND FRANK J. HARITON
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND JULIA HOLBERT
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND ROBERT LUKE
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND ERWIN MASER
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND WAYNE MANSFIELD
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND MICHAEL MARKOW
OPTION AGREEMENT BETWEEN THE REGISTRANT AND MICHAEL MARKOW
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND RICHARD SCHUSTER
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND ALLAN I. ZACKLER
CONSULTING AGREEMENT BETWEEN THE REGISTRANT AND MICHAEL ZWEIG
(Full title of the plans)
MR. MARK BEYCHOK, PRESIDENT
VITAFORT INTERNATIONAL CORPORATION
1800 AVENUE OF THE STARS, SUITE 1114
LOS ANGELES, CALIFORNIA 90067
(Name and address of agent for service)
(310) 552-6393
Telephone number, including area code, of agent for service
Copy to:
FRANK J. HARITON, ESQ.
1350 AVENUE OF THE AMERICAS - 29TH FLOOR
NEW YORK, NEW YORK 10019
(212) 265-8600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Price Aggregate Registration
to be registered Registered Per Share* Offering Price* Fee**
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value
$.0001 per
share 555,600 $1.00 $555,600.00 $168.35
======================================================================================
</TABLE>
* Based upon the average of the closing bid and asked prices of the
Registrant's Common Stock as reflected on the Electronic Bulletin Board on
September 5, 1997 in the case of stock grants and based on the exercise price of
options in the case of options in the case of per share data and based upon the
aggregate of the foregoing stock price and exercise price in the case of
aggregate data.
** Calculated pursuant to Rule 457(h).
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) Vitafort International Corporation's (the "Company") Annual Report on Form
10-KSB for the year ended December 31, 1996, filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters ended March
31, 1997 and June 30, 1997.
(c) The Company's Current Reports on Form 8-K, filed February 7, 1997 (as
amended February 12, 1997) and July 8, 1997, filed pursuant to Section 13(a) or
15(d) of the Exchange Act.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the document referred to in (a)
above.
(e) The Prospectus of the Company filed by the Company on December 19, 1989
which contains a description of the Company's Common Stock.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment indicating that all securities offered hereby have been sold or
deregistering all such securities then unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Frank J. Hariton, Esq. owns: (i)17,977 shares of the Company's common
stock; (ii) 800 of the Company's redeemable warrants; (iii) 3,333 common stock
purchase options exercisable at $4.50 and; (iv) 3,333 common stock purchase
options exercisable at $6.00.
Item 6. Indemnification of Directors and Officers.
Article Seventh of the Company's Certificate of Incorporation provides for
indemnification of the Company's officers and directors to the fullest extent
permitted under the General Corporation Law of the State of Delaware ("DGCL").
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<PAGE>
SECTION 145 of the DGCL, as amended, applies to the Company and the
relevant portion of the DGCL provides as follows:
(S) 145. Indemnification of officers, directors, employees and agents; insurance
(a) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the
person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
the person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
(b) A corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in
a manner the person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding
II-2
<PAGE>
referred to in subsections (a) and (b) of this section, or in defense of
any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(1) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (2) if there are no
such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
II-3
<PAGE>
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court
of Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees).
The Company maintains insurance for the benefit of its directors and
officers and the directors and officers of its subsidiaries, insuring such
persons against certain liabilities, including liabilities arising under the
securities laws.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable. Furthermore, the Company has given certain
undertakings with respect to indemnification in connection with this
Registration Statement.
Item 7. Exemption from Registration Claimed.
No "restricted securities," as defined in the instructions to Form S-8, are
being offered hereby.
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<PAGE>
Item 8. Exhibits.
4.l - Certificate of Incorporation of Registrant*
4.2 - By-laws of Registrant*
4.3 - Agreement and Plan of Merger between the Registrant and Vitafort
International Corporation, a California corporation*
4.4 - Certificate of Designation - Series A Preferred Stock**
4.5 - Certificate of Designation - Series B Preferred Stock**
4.6 - Certificate of Amendment to the Certificate of Incorporation, filed
November 1991**
4.7 - Certificate of Designation - Series C Preferred Stock**
4.8 - Certificate of Amendment to the Certificate of Incorporation, filed
February 8, 1994***
4.9 - Certificate of Designation - Series D Preferred Stock***
4.10 - Certificate of Amendment to the Certificate of Incorporation, filed
November 1995 ****
4.11 - Specimen Stock Certificate. Incorporated by reference to Exhibit 4.1
to the Registrants Annual Report on Form 10-KSB for the year ended
December 31, 1996 (the "1996 10-KSB")
4.12 - Specimen Redeemable Common Stock Purchase Warrant*
4.13 - Form of Warrant Agreement*
4.14 - Warrant Extension Agreement, December 18, 1992**
4.15 - Warrant Extension Agreement, December 18, 1994***
4.16 - Warrant Extension Agreement, January 18, 1995***
4.17 - Warrant Extension Agreement, April 3, 1995***
4.18 - Warrant Extension Agreement, May 3, 1995****
4.19 - Warrant Extension Agreement, June 15, 1995 ****
4.20 - Warrant Extension Agreement, July 17, 1995 ****
II-5
<PAGE>
4.21 - Warrant Extension Agreement, August 16, 1995****
4.22 - Warrant Extension Agreement, December 31, 1995 ****
4.23 - Warrant Extension Agreement, April 30, 1996 *****
4.24 - Certificate of Elimination for Series A Preferred Stock, April 26,
1996 *****
4.25 - Certificate of Elimination for Series D Preferred Stock, May 6,
1996 *****
4.26 - Warrant Extension Agreement, July 31, 1996. Incorporated by reference
to the like numbered Exhibit to the Registrant's Registration
Statement on Form S-8 filed December 12, 1996 (the "December 1996 S-
8").
4.27 - Warrant Extension Agreement, September 30, 1996. Incorporated by
reference to the like numbered Exhibit to the December 1996 S-8.
4.28 - Warrant Extension Agreement, November 11, 1996. Incorporated by
reference to the like numbered Exhibit to the December 1996 S-8.
4.29 - Certificate of Amendment to the Certificate of Incorporation, dated
October 4, 1996. Incorporated by reference to the like numbered
Exhibit to the December 1996 S-8.
4.30 - Warrant Extension Agreement, November 15, 1996. Incorporated by
reference to the like numbered Exhibit to the December 1996 S-8.
4.31 - Warrant Extension Agreement, April 15, 1997. Incorporated by
reference to Exhibit 4.19 to the 1996 10-KSB.
4.32 - Amended Certificate of Designation 1997 Series A Preferred Stock.
4.33 - Certificate of Amendment to the Registrant's Certificate of
Incorporation, July 1997.
5.01 - Opinion of Frank J. Hariton, Esq.
23.01 - Consent of Frank J. Hariton, Esq. (included in Exhibit 5.01).
23.02 - Consent of BDO Seidman, LLP, Independent Certified Public Accountants.
23.03 - Consent of KMPG Peat Marwick LLP, Independent Certified Public
Accountants.
24.01 - Power of Attorney (contained on signature page)
99.01 - Consulting Agreement between the Registrant and Gerry Aster.
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<PAGE>
99.02 - Consulting Agreement between the Registrant and Paul Cowen.
99.03 - Consulting Agreement between the Registrant and Linda Dellavechia.
99.04 - Consulting Agreement between the Registrant and Mark Dodge.
99.05 - Consulting Agreement between the Registrant and Michael Donahue.
99.06 - Consulting Agreement between the Registrant and Frank J. Hariton.
99.07 - Consulting Agreement between the Registrant and Julia Holbert.
99.08 - Consulting Agreement between the Registrant and Robert Luke
99.09 - Consulting Agreement between the Registrant and Wayne Mansfield.
99.10 - Consulting Agreement between the Registrant and Michael Markow.
99.11 - Option Agreement between the Registrant and Michael Markow.
99.12 - Consulting Agreement between the Registrant and Erwin Maser.
99.13 - Consulting Agreement between the Registrant and Richard Schuster.
99.14 - Consulting Agreement between the Registrant and Allan I. Zackler.
99.15 - Consulting Agreement between the Registrant and Michael Zweig.
* Incorporated by reference to the exhibits to the Registrant's Registration
Statement on Form S-18, File Number 33-31883.
** Incorporated by reference to the exhibits to the Registrant's Form 10-KSB
for the year ended December 31, 1993.
*** Incorporated by reference to the exhibits to the Registrant's Form 10-KSB
for the year ended December 31, 1994.
**** Incorporated by reference to the Exhibits to the Registrant's Registration
Statement on Form S-8 dated January 16, 1996.
***** Incorporated by reference to the Exhibits to the Registrant's Registration
Statement on Form S-8 dated May 22, 1996.
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
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<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than payment by the Company of expenses paid or incurred
by a director, officer or controlling person of the Company in the successful
defense of any action, suit, or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles and State of California, on the 5th day
of September, 1997.
VITAFORT INTERNATIONAL CORPORATION
By: /s/ Mark Beychok
-------------------------------
Mark Beychok, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark Beychok and Jack Spencer, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or their substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<S> <C> <C>
/s/ Mark Beychok
- ------------------
Mark Beychok Director, Chief Executive Officer and President September 5, 1997
(Principal Executive Officer)
/s/ Jack B. Spencer
- ---------------------
Jack B. Spencer Chief Operating Officer and Chief Financial Officer September 5, 1997
(Principal Financial and Accounting Officer)
/s/ Donald Wohl
- -------------------
Donald Wohl Director September 5, 1997
/s/ Benjamin Tabatchnick
- ---------------------------
Benjamin Tabatchnick Director September 5, 1997
- ------------------------
Paul S. Hermis Director
</TABLE>
II-9
<PAGE>
EXHIBIT 4.32
AMENDED CERTIFICATE OF DESIGNATION
OF 1997 SERIES A CONVERTIBLE PREFERRED STOCK
OF VITAFORT INTERNATIONAL CORPORATION.
_____________________________________________
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
_____________________________________________
We, the undersigned, Mark Beychok, being the President of Vitafort
International Corporation ("Corporation") and Frank J. Hariton, being the
Assistant Secretary of the Corporation, hereby certify pursuant to Section 242
of the General Corporation Law of the State of Delaware that:
1. The name of the Corporation is Vitafort International Corporation.
2. The Certificate of Incorporation of the Corporation was filed with the
Secretary of State on September 28, 1989.
3. On April 3, 1997, pursuant to authority vested in the Board of
Directors by Article 4(b) of the Corporation's Certificate of Incorporation, the
Board of Directors established a series of 500 shares of Preferred Stock of the
Corporation (the "1997 Series A Convertible Preferred Stock").
4. On April 9, 1997, a Certificate of Designation was filed by the
Corporation with respect to the 1997 Series A Preferred Stock
5 On May 27, 1997 the Board of Directors of the Corporation and the sole
holder of the 1997 Series A Preferred Stock each adopted the following
resolutions by written consent to amend and restate the Certificate of
Designation of the Series A Convertible Preferred Stock:
RESOLVED, that pursuant to Section 242 of the General Corporation Law of
the State of Delaware, the Designations of the Corporation's 1997 Series A
Convertible Preferred Stock are amended and restated to be the following:
Section 1. Designation and Amount. The shares of such series having a
----------------------
par value of $0.01 per share shall be designated as "1997 Series A Convertible
Preferred Stock" (the "1997 Series A Preferred Stock") and the number of shares
constituting such series shall be 750. The relative rights, preferences and
limitations of the 1997 Series A Preferred Stock shall be in all respects
identical, share for share, to the Common Stock of the Corporation, except as
otherwise provided herein.
<PAGE>
Section 2. Dividends.
---------
Annual Dividends. The holders of 1997 Series A Preferred Stock shall be
------------------
entitled to receive dividends and other distributions when, as and if declared
by the Board of Directors out of funds legally available for such purposes at
the annual rate of $60.00 per share (6%) per annum, payable in annual
installments. The first annual payment of dividends shall be made on the
earlier of (i) January 2, 1998 to holders of record on December 31, 1997 or (ii)
on the date of conversion or redemption based on the number of days between the
date of issue and the date of conversion or redemption. The next annual payment
of dividends shall be made on the first business day of each year to the holders
of record on the last business day of each year. The Company shall have the
right, in its sole discretion, to pay all dividends on the Series A Preferred
Stock in shares of its Common Stock, at the average Market Price (as determined
under Section 7 (B) hereof) of its Common Stock for the five trading days
preceding the record date for such dividend.
For purposes of this Certificate the term "junior stock" shall mean the
Common Stock and any other class or series of shares of the Corporation
hereafter authorized over which 1997 Series A Preferred Stock has preference or
priority in the payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
Section 3. Voting Rights. Except as otherwise provided by the General
-------------
Corporation Law of the State of Delaware, the 1997 Series A Preferred Stock have
no voting rights.
Section 4. Reacquired Shares. Any shares of the 1997 Series A
-----------------
Preferred Stock redeemed or purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock, unless otherwise provided for
in the Certificate of Incorporation of the Corporation, and may be reissued as
part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions or restrictions
on issuance set forth herein.
Section 5. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon the liquidation, dissolution or winding up of the Corporation, no
distribution shall be made: (i) to the holders of junior stock unless, prior
thereto, the holders of 1997 Series A Preferred Stock shall have received a
liquidation preference of $1,000.00 per share, plus an amount equal to unpaid
dividends thereon, if any, including accrued dividends, whether or not declared,
to the date of such payment or (ii) to the holders of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
1997 Series A Preferred Stock, except distributions made ratably on the 1997
Series A Preferred Stock and all other such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. For purposes of this Certificate, none
of (1) the sale, conveyance, exchange or transfer of all or substantially all of
the property and assets of the Corporation, (2) the consolidation or merger of
the Corporation with or into any other corporation, or (3) the merger or
consolidation of any other corporation into or with the Corporation shall be
deemed to be a liquidation, dissolution or winding up of the Corporation,
provided that in each case,
- --------
2
<PAGE>
effective provision is made in the Certificate of Incorporation of the resulting
and surviving corporation or otherwise for the protection of the rights of the
holders of the 1997 Series A Preferred Stock.
(B) Upon any liquidation, dissolution or winding up of the Corporation, and
after full payment as provided in Section 5(A) above, the holders of 1997 Series
A Preferred Stock shall not be entitled to any further participation in any
distribution of assets by the Corporation.
Section 6. Conversion.
----------
(A) Subject to the provisions for adjustments hereinafter set forth, each
share of the 1997 Series A Preferred Stock, together with all accrued and unpaid
dividends thereon, shall, at the option of the holder thereof, be convertible
at any time from and after the earlier of: (i) May 31, 1997 or (ii) the
effective date of the Registration Statement relating to such shares of Series A
Preferred Stock referred to in Section 11 hereof, in the manner hereinafter set
forth, into fully paid and nonassessable shares of Common Stock ("Conversion
Shares") in an amount equal to the quotient determined by dividing (1) the sum
of $1,000.00 plus all accrued and unpaid dividends on such share of 1997 Series
A Preferred Stock by (2) the price ("Conversion Price") equal to the lesser of
(i) $1.25 or (ii) 70% of the five day average Market Price per share (as defined
in Section 7(B) below) of the Common Stock for the five trading days immediately
preceding the Conversion Date (as defined in Section 7(B) below). The Holder(s)
of the Preferred Shares shall not convert more than ten per cent of the Shares
originally acquired by them on any one day.
(B) Conversion of the shares of 1997 Series A Preferred Stock may be
effected by the holder thereof surrendering to the Corporation at its principal
office in the State of California or at the office of any agent or agents of the
Corporation (collectively, the "Conversion Recipient"), as may be designated by
the Board of Directors of the Corporation for such purpose and written notice
thereof provided to such holder, the certificate for such 1997 Series A
Preferred Stock to be converted together with a written notice of conversion in
the form annexed hereto as Exhibit A (the "Conversion Notice") (1) stating that
such holder elects to convert all or a specified whole number of such shares in
accordance with the provisions of Section 6 of this Certificate of Designation,
(2) specifying the name or names in which such holder wishes the certificate of
certificates for Conversion Shares to be issued. In case the Conversion Notice
shall specify a name or names other than that of the holder, such notice shall
be accompanied by payment of all transfer taxes payable upon the issuance of
Conversion Shares in such other name or names. (A copy of the Conversion Notice
shall also be delivered to counsel to the Corporation.) Within five (5)
business days after the surrender of such certificate or certificates and the
receipt of the Conversion Notice relating thereto and, if applicable, payment of
all transfer taxes (or the taxes having been paid), the Corporation shall
deliver or cause to be delivered: (1) certificates representing the number of
validly issued fully paid and nonassessable full Conversion Shares to which the
holder of the shares of 1997 Series A Preferred Stock being converted shall be
entitled and (2) if less than the full number of the 1997 Series A Preferred
Stock evidenced by the surrendered certificate or certificates is being
converted, a new certificate or certificates, if so requested, of like tenor,
for the number of shares evidenced by such surrendered certificate or
certificates less the number of shares being converted. Such conversion shall
be deemed to have been made on the date (the "Conversion Date") specified in the
3
<PAGE>
Conversion Notice, provided that a copy of the Conversion Notice is received by
the Conversion Recipient by facsimile transmission on such date and the original
of the Conversion Notice together with the certificate or certificates
representing the shares of 1997 Series A Preferred Stock to be converted are
received by the Conversion Agent within three (3) business days thereafter;
otherwise, and in all other cases, the Conversion Date shall be the date on
which the Conversion Recipient actually receives the original Conversion Notice
and such certificate or certificates. Immediately prior to the close of
business on the Conversion Date, the rights of the holder of the shares of 1997
Series A Preferred Stock being converted shall cease with respect to such
shares, except for the right to receive shares of Common Stock in accordance
herewith, and the person entitled to receive the shares of Common Stock shall be
treated for all purposes as having become the record holder of such shares of
Common Stock at such time.
The Corporation shall be responsible for taking all action and bearing all
costs necessary to issue the Common Stock as provided herein, including the
responsibility and cost for delivery of an opinion letter to the transfer agent
for the Common Stock, if so required. The place for the delivery of the Common
Stock by the Corporation designated by the Holder shall be within the
Continental United States.
In the event that the Corporation does not make delivery of the Common
Stock, as instructed in the Conversion Notice, within 5 business days after the
Conversion Date, then, in such event, the Corporation shall pay the Holder an
amount, in cash, in accordance with the following schedule, wherein "No. of
Business Days Late" is defined as the number of business days beyond the 5
business days delivery period.
<TABLE>
<CAPTION>
Late Payment for Each
shares of 1997 Series A
No. of Business Days Late Preferred Stock Being Converted
- ------------------------- ------------------------------------
<S> <C>
1 $ 5
2 $10
3 $15
4 $20
5 $25
6 $30
7 $35
8 $40
9 $45
10 $50
(greater than)10 $50 + $10 for each Business
Day Late Beyond 10 Days.
</TABLE>
Nothing herein shall limit the Holder's right to pursue actual damages for
the Corporation's failure to maintain a sufficient number of authorized shares
of Common Stock. Furthermore, if the sums due in connection with the late
delivery of the Common Stock are not paid upon the delivery
4
<PAGE>
of the Common Stock, the Holder shall have the right, upon written notice given
to the Company within twenty days, to rescind the transaction.
(C) In connection with the conversion of any shares of 1997 Series A
Preferred Stock, no fractions of shares of Common Stock shall be issued, but in
lieu thereof any fractional share shall be rounded up to the nearest whole
share. If more than one share of 1997 Series A Preferred Stock shall be
surrendered for conversion by the same holder at the same time, the number of
full shares of Common Stock issuable on conversion thereof shall be computed on
the basis of the total number of shares of 1997 Series A Preferred Stock so
surrendered.
(D) The Conversion Price and/or the number of shares of Common Stock into
which each share of the 1997 Series A Preferred Stock is convertible shall be
adjusted from time to time as follows:
(i) In case the Corporation shall (a) subdivide the outstanding shares
of its Common Stock into a larger number of shares, (b) combine the
outstanding shares of its Common Stock into a smaller number of shares
or (c) issue by reclassification of its Common Stock any shares of the
Corporation, each holder of 1997 Series A Preferred Stock shall
thereafter be entitled upon conversion to receive for each share of
1997 Series A Preferred Stock held by him the number of shares of the
Corporation which he would have owned or have been entitled to receive
after the happening of one of the events described above in this
clause (i) had such share of 1997 Series A Preferred Stock been
converted immediately prior to the happening of such event. Such
adjustment shall become effective on the day next following the day
upon which such subdivision, combination or reclassification shall
become effective.
(ii) In case the Corporation shall consolidate or merge into or with
another corporation, or in case the Corporation shall sell or convey
to any other person or persons all or substantially all the property
of the Corporation, or in case the Corporation shall effect a capital
reorganization or reclassification of its Common Stock, each holder of
1997 Series A Preferred Stock then outstanding shall have the right
thereafter to convert each share of 1997 Series A Preferred Stock held
by him into the kind and amount of shares of stock, other securities,
cash, and property receivable upon such consolidation, merger, sale,
conveyance, reorganization or reclassification by a holder of the
number of shares of Common Stock into which such share might have been
converted immediately prior to such consolidation, merger, sale,
conveyance, reorganization or reclassification and shall have no other
conversion rights. In any such event, effective provision shall be
made, in the certificate or articles of incorporation of the resulting
or surviving corporation or otherwise or in any contracts of sale and
conveyance so that, so far as appropriate and as nearly as reasonably
may be, the provisions set forth herein for the protection of the
conversion rights of the shares of 1997 Series A Preferred Stock shall
thereafter be made applicable.
Such adjustments shall be made successively whenever any event listed above
shall occur.
5
<PAGE>
(E) In the event that at any time, as a result of an adjustment made
pursuant to this Section 6, the holder of any share of 1997 Series A Preferred
Stock thereafter converted shall become entitled to receive any shares of
capital stock or other securities of the Corporation other than shares of its
Common Stock, thereafter the number of such other shares of capital stock or
other securities so receivable upon conversion of 1997 Series A Preferred Stock
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to shares of the
Corporation's Common Stock contained in this Section 6, and the provisions of
this Certificate of Designation with respect to shares of the Corporation's
Common Stock shall apply, to the extent applicable, on like terms to any such
other shares of capital stock or warrants or other securities.
(F) If any adjustment in the number of shares of Common Stock into which
each share of the 1997 Series A Preferred Stock may be converted as required
pursuant to this Section 6 would result in an increase or decrease of less than
1% in the number of shares of Common Stock into which each share of the 1997
Series A Preferred Stock is then convertible, the amount of any such adjustment
shall be carried forward, and adjustment with respect thereto shall be made at
the time of and together with any subsequent adjustment which, together with
such amount and any other amount or amounts so carried forward, shall aggregate
at least 1% of the number of shares of Common Stock into which each share of the
1997 Series A Preferred Stock is then convertible. All calculations under this
Section 6(F) shall be made to the nearest one-hundredth of a share.
(G) The Board of Directors may, but shall not be required to, increase the
number of shares of Common Stock into which each share of the 1997 Series A
Preferred Stock may be converted, in addition to the adjustment required by this
Section 6, as shall be determined by it (as evidenced by a resolution of the
Board of Directors) to be advisable in order to avoid or diminish any income
deemed to be received by any holder of the Common Stock or 1997 Series A
Preferred Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for federal income tax purposes.
(H) Upon conversion of any shares of the 1997 Series A Preferred Stock, the
holder thereof shall not be entitled to receive any accumulated, accrued or
unpaid dividends in respect of the shares so converted, provided that such
--------
holder shall be entitled to receive any dividends on such shares of the 1997
Series A Preferred Stock declared prior to such conversion if such holder held
such shares on the record date fixed for the determination of holders of the
1997 Series A Preferred Stock entitled to receive payment of such dividend.
(I) The Corporation shall use its reasonable best efforts to at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock the full number of shares of Common Stock of the Corporation or other
securities that may at any time be issuable upon the conversion of all
outstanding shares of the 1997 Series A Preferred Stock pursuant to this
Certificate of Designation.
(J) The right of the holder to conversion of the 1997 Series A Preferred
Stock shall be subject to the limitation that, other than for conversions at the
option of the Corporation Mandatory Conversions set forth in Section 7., in no
event shall the Holder of the 1997 Series A Preferred Stock
6
<PAGE>
be entitled to convert that amount of shares of 1997 Series A Preferred Stock in
excess of that amount upon conversion of which the sum of (1) the number of
shares of Common Stock of the Corporation beneficially owned by the Holder and
its affiliates (other than shares of Common Stock which may be deemed to be
owned by reason of the ownership of unconverted shares of 1997 Series A
Preferred Stock) and (2) the number of shares of Common Stock issuable upon such
conversion of 1997 Series A Preferred Stock with respect to which the
determination under this subsection in being made, would result in the
beneficial ownership by the Holder and its affiliates of more than 4.9% of the
outstanding shares of Common Stock of the Corporation. For the purposes of this
subsection, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulations 13 D-G
thereunder.
Section 7. Conversion at the Option of the Corporation and Mandatory
---------------------------------------------------------
Redemption.
- -----------
(A) The Corporation shall have the right to require mandatory conversion of
the 1997 Series A Preferred Stock at any time at the then current Conversion
Price upon written notice to the record holders of the 1997 Series A Preferred
Stock, provided that the mandatory conversion provided in this Section 7 shall
only be effected if the average Market Price for the Common Stock (as defined
herein) for a five day period ending within ten days of the giving of the notice
shall equal or exceed 200% of the average Market Price (as determined under
Section 7 (B) hereof) of its Common Stock for the five trading days preceding
the issue date of the Preferred Stock (subject to adjustments for stock splits
and the like) (the "Closing Date Market Price"). Upon the giving of such notice
and the receipt of the Conversion Shares pursuant thereto, the holders of the
1997 Series A Preferred Stock will be deemed to have been converted and to have
the rights of holders of Common Stock. Upon the giving of a mandatory
conversion notice by the Company under this Section 7(A), the holders of the
Series A Preferred Stock shall have no further rights other than to receive the
shares of Common Stock set forth in the notice of mandatory conversion upon the
surrender of the certificates of their Series A Preferred Stock. Upon the
conversion of the Preferred Shares pursuant to the terms of this Section 7 (A),
the Corporation shall also issue to the holders two year options for the
purchase of fifteen (15%) per cent of the shares issued on such conversion which
options shall have an exercise price equal to one hundred thirty (130%) of the
Closing Date Market Price.
(B) As used herein, the Market Price per share of the Common Stock at any
date shall be (i) if the principal trading market for such securities is an
exchange, the closing bid price on such exchange on such day provided if trading
of such Common Stock is listed on any consolidated tape, the price shall be the
closing bid price set forth on such consolidated tape, or (ii) if the principal
market for such securities is the over-the-counter market, the closing bid price
on such date as set forth by NASDAQ NMS, NASDAQ SmallCap, the NASDAQ Electronic
Bulletin Board or over the counter, as the case may be, or (iii) if the security
is not quoted on NASDAQ, the closing bid price as set forth in the NATIONAL
QUOTATION BUREAU sheet listing such securities for such day. Notwithstanding the
foregoing, if there is no reported closing price or closing bid price, as the
case may be, on a date prior to the event requiring a computation or adjustment
hereunder, then the Market Price shall be determined as of the latest date prior
to such day for which such closing price or closing bid price is available.
7
<PAGE>
(C) On March 31, 1999, the Corporation shall be required to redeem any then
outstanding Series A Preferred Shares at a price, payable in Common Stock of the
Corporation which shall be valued at the Conversion Price then in effect, equal
to $1000.00 per share plus all accrued and unpaid dividends. Upon the
Corporation's tendering the redemption price to the record holder of the Series
A Preferred Shares, all rights as a holder, other than to receive said
redemption price, shall cease. If the Corporation is unable to locate any holder
of Series A Preferred Shares, the Corporation may deposit the redemption price
in a non-interest bearing account at any federally insured bank. Upon the
Corporation's making such deposit, all rights of such holder, other than to
receive said redemption price, shall cease.
Section 8. Adjustments for Consolidation, Merger, etc.
-------------------------------------------
Prior to the consummation of a consolidation or merger or a sale of
substantially all of the property of the Corporation as described in Section 6
(D)(ii) hereof, each corporation, including this Corporation, which may be
required to deliver any stock, securities, cash or other property to the holders
of shares of the 1997 Series A Preferred Stock shall assume, by written
instrument delivered to each transfer agent of the 1997 Series A Preferred
Stock, the obligation to deliver to such holder such shares of stock,
securities, cash or other property to which, in accordance with the provisions
of Section 6, such holder may be entitled and each such corporation shall have
furnished ,at such corporation's sole cost and expense, to each such transfer
agent or person acting in a similar capacity, including this Corporation, an
opinion of counsel for such corporation, stating that such assumption agreement
is legal, valid and binding upon such corporation.
Section 9. Reports as to Adjustments.
-------------------------
Whenever the Conversion Price and/or the number of shares of Common Stock
into which the shares of the 1997 Series A Preferred Stock are convertible is
adjusted as provided in Section 6, the Corporation shall (A) promptly compute
such adjustment and furnish to each transfer agent or person acting in a similar
capacity, including the Corporation, for the 1997 Series A Preferred Stock, a
certificate, signed by a principal financial officer of the Corporation, setting
forth the adjusted Conversion Price and the new number of shares of Common Stock
into which each share of 1997 Series A Preferred Stock is convertible as a
result of such adjustment and the computation thereof and when such adjustment
will become effective and (B) promptly mail to the holders of record of the
outstanding shares of the 1997 Series A Preferred Stock a notice stating that
the Conversion Price and the number of shares into which the shares of 1997
Series A Preferred Stock are convertible has been adjusted and setting forth the
new Conversion Price and number of shares into which each share of the 1997
Series A Preferred Stock is convertible as a result of such adjustment and when
such adjustment will become effective. However, no rights at law or in equity
shall accrue to the holders of the 1997 Series A Preferred Stock by reason of
any failure by the Corporation to give the notice required hereunder nor shall
such failure by the Corporation affect the validity of the event or action
giving rise to the requirement of such notice.
Section 10. Notices of Corporate Action.
---------------------------
In the event of:
8
<PAGE>
(A) any taking by the Corporation of a record of the holders of its Common
Stock for the purpose of determining the holders thereof who are entitled to
receive any dividend (other than a dividend payable solely in cash or shares of
common stock) or other distribution, or any right or warrant to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right;
(B) any capital reorganization, reclassification or recapitalization of the
Corporation (other than a subdivision or combination of the outstanding shares
of its Common Stock), any consolidation or merger involving the Corporation and
any other person (other than a consolidation or merger with a wholly-owned
subsidiary of the Corporation, provided that the Corporation is the surviving or
the continuing corporation and no change occurs in the common stock), or any
transfer of all or substantially all the assets of the Corporation to any other
person; or
(C) any voluntary or involuntary dissolution, liquidation or winding up of
the Corporation; then, and in each such case, the Corporation shall cause to be
mailed to each transfer agent for the shares of the 1997 Series A Preferred
Stock and to the holders of record of the outstanding shares of the 1997 Series
A Preferred Stock, at least 20 days (or 10 days in case of any event specified
in clause (A) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (i) the date or expected date on which
any such record is to be taken for the purpose of such dividend, distribution or
right or (ii) the date or expected date to which any such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of record of Common Stock
shall be entitled to exchange their shares of Common Stock for the securities or
other property deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, dissolution, liquidation or
winding up. Such notice shall also state whether such transaction will result
in any adjustment in the number of shares of Common Stock into which each share
of the 1997 Series A Preferred Stock shall be convertible upon such adjustment
and when such adjustment will become effective. The failure to give any notice
required by this Section 9, or any defect therein, shall not affect the legality
or validity of any event or such action requiring such notice.
Section 11. Registration Rights. The holders of the 1997 Series A
--------------------
Preferred Stock are beneficiaries of the obligations for registration under the
Securities Act of 1933, as amended, and applicable state law as set forth in a
Registration Rights Agreement between the Corporation and the original holder of
the 1997 Series A Preferred Stock.
IN WITNESS WHEREOF, the undersigned, being the President and Assistant
Secretary of the Corporation, do hereby execute this Amended Certificate of
Designation, here declaring that this is their free act and deed and that the
facts stated herein are true and accordingly have hereunto set their hands as of
this 29th day of May, 1997.
VITAFORT INTERNATIONAL CORPORATION
By: /s/Mark Beychok
-----------------------------
Mark Beychok, President
ATTEST:
/s/ Frank J. Hariton
- -------------------------------------
Frank J. Hariton, Assistant Secretary
9
<PAGE>
NOTICE OF CONVERSION
(To be executed by the Registered Holder in order to Convert the 1997 Series A
Preferred Stock)
The undersigned hereby irrevocably elects, as of ________________, ______,
to convert ______________ shares of the 1997 Series A Convertible Preferred
Stock ("1997 Series A Preferred Stock") of Vitafort International Corporation, a
Delaware corporation (the "Company"), into shares of Common Stock of the Company
in accordance with the terms and conditions relating to the conversion as set
forth in Sections 6 and 7 of the Amended and Restated Certificate of Designation
for the 1997 Series A Preferred Stock on file with the Secretary of State of the
State of Delaware.
Certificate(s) representing the Common Stock should be issued to the
undersigned, or if otherwise indicated below, then to the person(s) indicated
below:
Name _______________________________________
Address _____________________________________
____________________________________________
Name _______________________________________
____________________________________________
(The Corporation reserves the right to require an investment representation
letter from any recipient of shares of Common Stock other than the Holder of the
Series A Preferred Shares.)
The undersigned represents and warrants that it is the bona fide record and
beneficial owner of the Series A Preferred Shares herewith surrendered for
conversion.
Date of Conversion: ______________
Applicable Conversion Price ______________
Number of Shares of Common
Stock to be Issued ______________
(If the above information is left blank, then Corporation will calculate the
conversion price for you.)
Signature ___________________________________
Print Name
(Name must match certificate) ___________________________________
10
<PAGE>
EXHIBIT 4.33
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
VITAFORT INTERNATIONAL CORPORATION
Pursuant to Section 242
of the General Corporation Law
of the State of Delaware
VITAFORT INTERNATIONAL CORPORATION, a Delaware
corporation (the "Corporation"), hereby certifies as follows:
FIRST: The amendment to the Certificate of Incorporation to be
effected hereby is as follows:
Paragraph 4 of the Certificate of Incorporation, relating to the
authorized capital stock of the Corporation, is hereby amended to read as
follows:
4. The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 30,500,000, of which 500,000
shall be Preferred Stock, par value $.01 per share and 30,000,000 shall be
Common Stock, par value $.0001 per share ("Common Stock"), and the voting
power, designations, preferences and relative participating option or other
special qualifications, limitations or restrictions thereof are set forth
hereinafter:
1. Preferred Stock
---------------
(a) The Preferred Stock may be issued in one or more series, each
of which shall be distinctively designated, shall rank equally and
shall be identical in all respects except as otherwise provided in
subsection 1(b) of this Section 4.
(b) Authority is hereby vested in the Board of Directors to issue
from time to time the Preferred Stock of any series and to state
in the resolution or resolutions providing for the issuance of
shares of any series the voting powers, if any, designations,
preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions of
such series to the full extent now or hereafter permitted by the
law of the State of Delaware in respect of the matters set forth
in the following clauses (i) to (viii) inclusive;
(i) the number of shares to constitute such series, and the
distinctive designations thereof;
<PAGE>
(ii) the voting powers, full or limited, if any, of such series;
(iii) the rate of dividends payable on shares of such series, the
conditions on which and the times when such dividends are payable,
the preference to, or the relation to, the payment of the
dividends payable on any other class, classes or series of stock,
whether cumulative or non-cumulative and, if cumulative, the date
from which dividends on shares of such series shall be cumulative;
(iv) the redemption price or prices, if any, and the terms and
conditions on which shares of such series shall be redeemable;
(v) the requirement of any sinking fund or funds to be applied
to the purchase or redemption of shares of such series and, if so,
the amount of such fund or funds and the manner of application;
(vi) the rights of shares of such series upon the liquidation,
dissolution or winding up of, or upon any distribution of the
assets of, the Corporation;
(vii) the rights, if any, of the holders of shares of such series
to convert such shares into, or to exchange such shares for,
shares of any other class, classes or series of stock and the
price or prices or the rates of exchange and the adjustments at
which such shares shall be convertible or exchangeable, and any
other terms and conditions of such conversion or exchange;
(viii) any other preferences and relative, participating, optional
or other special rights of shares of such series, and
qualifications, limitations or restrictions including, without
limitation, any restriction on an increase in the number of shares
of any series theretofore authorized and any qualifications,
limitations or restrictions of rights or powers to which shares of
any future series shall be subject.
(c) The number of authorized shares of Preferred Stock may be
increased or decreased by the affirmative vote of the holders of a
majority of the votes of all classes of voting securities of the
Corporation without a class vote of the Preferred Stock, or any
series thereof, except as otherwise provided in the resolution or
resolutions fixing the voting rights of any series of the
Preferred Stock.
2. Common Stock
------------
(a) After the requirements with respect to preferential dividends
on the Preferred Stock (fixed in accordance with the provisions
of Paragraph 1 of this Section 4), if any, shall have been met
and after the corporation shall have
2
<PAGE>
complied with all the requirements, if any, with respect to the
setting aside of same as sinking funds or redemption or purchase
accounts (fixed in accordance with the provisions of Paragraph 1
of this Section 4), and subject further to any other conditions
which may be fixed in accordance with the provisions of Paragraph
1 of this Section 4, then and not otherwise the holders of Common
Stock shall be entitled to receive such dividends as may be
declared from time to time by the Board of Directors.
(b) After distribution in full of the preferential amount (fixed
in accordance with the Provisions of Paragraph 1 of this Section
4), if any, to be distributed to the holders of Preferred Stock
in the event of the voluntary or involuntary liquidation,
distribution or sale of assets, dissolution or winding-up of the
Corporation, the holders of Common Stock shall, subject to the
rights, if any, of the holders of Preferred Stock to participate
therein (fixed in accordance with the provisions of Paragraph 1
of this Section 4) be entitled to receive all the remaining
assets of the Corporation, tangible and intangible, of whatever
kind available for distribution to stockholders ratably in
proportion to the number of shares of Common Stock held by them
respectively.
(c) Except as may otherwise be required by law or by the
provisions of such resolution or resolutions as may be adopted by
the Board of Directors pursuant to Paragraph 1 of this Section 4,
each holder of Common Stock shall have one vote in respect of
each share of Common Stock held by him on all matters voted upon
by the stockholders.
3. OTHER PROVISIONS RELATED TO SHARES OF STOCK:
-------------------------------------------
(a) No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason
of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series,
or carrying any right to purchase stock of any class or series,
but such unissued stock, additional authorized issue of shares of
any class or series of stock or securities convertible into or
exchangeable for stock, or carrying any right to purchase stock,
may be issued and disposed of pursuant to resolution of the Board
of Directors to such persons, firms, corporations or
associations, whether such holders or others, and upon such terms
as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
3
<PAGE>
(b) The powers and rights of Common Stock shall be subordinated
to the powers, preferences and rights of the holders of Preferred
Stock. The relative powers, preferences and rights of each series
of Preferred Stock in relation to the powers, preferences and
rights of each other series of Preferred Stock shall, in each
case, be as fixed from time to time by the Board of Directors in
the resolution or resolutions adopted pursuant to authority
granted in Paragraph I of this Section 4 and the consent, by
Class or series, vote or otherwise, of the holders of such of the
series of are from time to time outstanding Preferred Stock as
for the issuance by the Board of shall not be required Directors
of any other series of rights of such other series shall be fixed
by the Board of Directors as senior to, or on a parity with, the
powers, preferences and rights of such outstanding series, or any
of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of
Preferred Stock adopted pursuant to Paragraph 1 of this 4 Section
4 that the consent of the holders of a majority (or such greater
proportion as shall be therein fixed) of the outstanding shares
of such series voting thereon shall be required for the issuance
of any or all other series of Preferred Stock.
(c) subject to the provisions of subparagraph (b) of this
Paragraph 3 of this Section 4, shares of any series of Preferred
Stock may be authorized or issued from time to time as the Board
of Directors in its sole discretion shall determine and on such
terms and for such consideration as shall be fixed by the Board
of Directors in its sole discretion.
(d) Shares of Common stock may be issued from time to time as the
Board of Directors in its sole discretion shall determine and on
such terms and for such consideration as shall be fixed by the
board of Directors in its sole discretion.
(e) The authorized number of shares of Common Stock and of
Preferred Stock Preferred Stock may be increased or decreased
from time to time by the affirmative vote of the holders of a
majority of the outstanding shares of Common Stock and Preferred
Stock of the corporation entitled to vote thereon.
SECOND: The foregoing amendment to the Certificate of Incorporation of the
Corporation was duly adopted by the holders of at least a majority of the
outstanding shares entitled to vote by their giving written consent thereto in
accordance with Section 242 of the Delaware General Corporation Law
4
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its President and its Assistant Secretary this 8th day
of July, 1997.
VITAFORT INTERNATIONAL CORPORATION
/s/ Mark Beychok
-------------------------------------
Mark Beychok, President
/s/ Frank J. Hariton
-------------------------------------
Frank J. Hariton, Assistant Secretary
5
<PAGE>
EXHIBIT 5.01
[LETTERHEAD OF FRANK S. HARITON]
August 25, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Vitafort International Corporation - Registration Statement on Form S-8
-----------------------------------------------------------------------
Gentlemen:
I have been requested by Vitafort International Corporation, a Delaware
corporation (the "Company"), to furnish you with my opinion as to the matters
hereinafter set forth in connection with the above-captioned registration
statement (the "Registration Statement") covering an aggregate of 555,600 shares
(the "Shares") of the Company's common stock, offered on behalf of the Company
in connection with: (A) a Consulting Agreement between the Registrant and each
of (i) Jerry Astor; (ii) Paul Cowen; (iii) Linda Dellavechia; (iv) Mark Dodge;
(v) Michael Donahue; (vi) Frank J. Hariton; (vii) Julia Holbert; (viii) Robert
Luke; (ix) Wayne Mansfield; (x) Michael Markow; (xi) Erwin Maser; (xii) Richard
Schuster; (xiii) Allan I. Zackler; and (xiv) Michael Zweig; and (B) an Option
Agreement between the Registrant and Michael Markow (each a "Plan" and
collectively the "Plans").
In connection with this opinion, I have examined the Registration Statement
and the Company's Certificate of Incorporation and By-laws (each as amended to
date), the Plans, copies of the records of corporate proceedings of the Company,
and such other documents as I have deemed necessary to enable me to render the
opinion hereinafter expressed.
Based upon and subject to the foregoing, I am of the opinion that the
Shares, when issued in accordance with the Plans, will be legally issued, fully
paid and non-assessable.
I render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of New York and the internal corporate law of the
State of Delaware. I hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the reference to my name under the caption
"Legal Opinions" in the Registration Statement and in the prospectus included in
the Registration Statement. I confirm that, as of the date hereof, I own the
number of shares and derivative securities of the Company set forth in the
Registration Statement under the heading "Interests of Named Experts and
Counsel.
Very truly yours,
/s/ Frank J. Hariton
Frank J. Hariton
<PAGE>
EXHIBIT 23.02
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Vitafort International Corporation
Los Angeles, California
We hereby consent to the use in the Registration Statement on Form S-8 of our
report dated April 14, 1997, relating to the audit of the consolidated
financial statements of Vitafort International Corporation, which are contained
in and incorporated by reference to the Annual Report on Form 10-KSB for the
year ended December 31, 1996. Our report contains an explanatory paragraph
regarding the Company's ability to continue as a going concern.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Los Angeles, California
September 4, 1997
<PAGE>
EXHIBIT 23.03
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Vitafort International Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 of Vitafort International Corporation of our report dated February 16, 1996,
relating to the consolidated balance sheets of Vitafort International
Corporation and subsidiaries as of December 31, 1995, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the years ended December 31, 1995 and 1994, which report appears in the December
31, 1996, annual report on Form 10-KSB of Vitafort International Corporation.
KPMG PEAT MARWICK LLP
Los Angeles, California
September 4, 1997
<PAGE>
EXHIBIT 99.01
August 20, 1997
Gerry Astor
G. M. Astor and Associates
4531 Varna Avenue
Sherman Oaks, CA 91423
Re: Billing and Payments in Kind
Dear Gerry:
This is to confirm that you have agreed to accept up to 10,000 shares of
unrestricted, tradable common stock of Vitafort as payment on account of
Vitafort for agreed services and fees rendered on our behalf by your firm (G. M.
Astor and Associates). The terms under which the securities are to be accepted
and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, sufficient shares
to fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Gerry Astor shall have the option to dispose of the shares in the open
market, in an orderly manner, during the ensuing 30 days from the date of issue.
3) The net proceeds received from the sale of the shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services or applied as a retainer for future services.
Net proceeds is defined as the sale price of the securities less the sales
commission cost and sundry fees charged by the stock broker (such costs should
not exceed approximately 6% of the gross sales price).
4) Gerry Astor may choose, at his own discretion, to keep the shares of
stock beyond the thirty (30) day period. In such case, G. M. Astor and
Associates will post a credit to the account of Vitafort in an amount equal to
the closing bid price as of the date of issue less five percent (5%) for
estimated sales costs. The date of issue shall be defined as the date of the
transmittal letter to you from Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
shares in question and Gerry Astor and/or G. M. Astor and Associates shall hold
Vitafort harmless for any decline in the market price of the securities issued
herein.
<PAGE>
5) Gerry Astor, via G. M. Astor and Associates, will continue to bill
Vitafort for services and appropriate fees on a periodic basis in the normal
course of business. These billings will clearly include notations and
supporting documentation, such as broker confirmations, pertaining to the net
proceeds to be applied to the account of Vitafort as a result of the sales of
securities during the period since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation to approve and issue the shares in accordance with
the above, Vitafort International Corporation bylaws and Articles of
Incorporation, and S.E.C. rules and regulations.
Sincerely,
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Gerry Astor
- -----------------------------
Gerry Astor
818-789-9040
- -----------------------------
Date
<PAGE>
EXHIBIT 99.02
August 20, 1997
Paul Cowen
10423 Riverside Dr.
Suite A
Toluca Lake, CA 91602
Re: Billing and Payments in Kind
Dear Paul:
This is to confirm that you have agreed to accept 6,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf. The terms under which the securities are
to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Paul Cowen shall have the option to dispose of the Shares in the open
market, in an orderly manner, during the ensuing 30 days from the date of issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Paul Cowen may choose, at his own discretion, to keep the Shares beyond
the thirty (30) day period. In such case, Paul Cowen will post a credit to the
account of Vitafort in an amount equal to the closing bid price as of the date
of issue less five percent (5%) for estimated sales costs. The date of issue
shall be defined as the date of the transmittal letter to you from Vitafort
sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Paul Cowen shall hold Vitafort harmless for any decline
in the market price of the securities issued herein.
<PAGE>
5) Paul Cowen will continue to bill Vitafort for services and appropriate
fees on a periodic basis in the normal course of business. These billings will
clearly include notations and supporting documentation, such as broker
confirmations, pertaining to the net proceeds to be applied to the account of
Vitafort as a result of the sales of securities during the period since the last
billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Paul Cowen
_____________________________
Paul Cowen
Telephone Number ______________________
_____________________________
Date
<PAGE>
EXHIBIT 99.03
August 20, 1997
Linda Dellavechia
3480 Sawtelle, #8
Los Angeles, CA 90066
Re: Billing and Payments in Kind
Dear Linda:
This is to confirm that you have agreed to accept up to 5,600 shares of
unrestricted, tradable common stock of Vitafort as payment on account of
Vitafort for agreed services and fees rendered on our behalf. The terms under
which the securities are to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, sufficient shares
to fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Linda Dellavechia shall have the option to dispose of the shares in the
open market, in an orderly manner, during the ensuring 30 days from the date of
issue.
3) The net proceeds received from the sale of the shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services or applied as a retainer for future services.
Net proceeds is defined as the sale price of the securities less the sales
commission cost and sundry fees charged by the stock broker (such costs should
not exceed approximately 6% of the gross sales price).
4) Linda Dellavechia may choose, at her own discretion, to keep the shares
of stock beyond the thirty (30) day period. In such case, Linda Dellavechia
will post a credit to the account of Vitafort in an amount equal to the closing
bid price as of the date of issue less five percent (5%) for estimated sales
costs. The date of issue shall be defined as the date of the transmittal letter
to you from Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
shares in question and Linda Dellavechia shall hold Vitafort harmless for any
decline in the market price of the securities issued herein.
<PAGE>
5) Linda Dellavechia will continue to bill Vitafort for services and
appropriate fees on a periodic basis in the normal course of business. These
billings will clearly include notations and supporting documentation, such as
broker confirmations, pertaining to the net proceeds to be applied to the
account of Vitafort as a result of the sales of securities during the period
since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation to approve and issue the shares in accordance with
the above, Vitafort International Corporation bylaws and Articles of
Incorporation, and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Linda Dellavechia
_____________________________
Linda Dellavechia
310-572-1070
_____________________________
Date
<PAGE>
EXHIBIT 99.04
August 20, 1997
Mark Dodge
21039 Mendenhall Court
Topanga, CA 90290
Re: Billing and Payments in Kind
Dear Mark Dodge:
This is to confirm that you have agreed to accept 15,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf. The terms under which the securities are
to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Mark Dodge shall have the option to dispose of the Shares in the open
market, in an orderly manner, during the ensuing 30 days from the date of issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Mark Dodge may choose, at his own discretion, to keep the Shares beyond
the thirty (30) day period. In such case, Mark Dodge will post a credit to the
account of Vitafort in an amount equal to the closing bid price as of the date
of issue less five percent (5%) for estimated sales costs. The date of issue
shall be defined as the date of the transmittal letter to you from Vitafort
sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Mark Dodge shall hold Vitafort harmless for any decline
in the market price of the securities issued herein.
<PAGE>
5) Mark Dodge will continue to bill Vitafort for services and appropriate
fees on a periodic basis in the normal course of business. These billings will
clearly include notations and supporting documentation, such as broker
confirmations, pertaining to the net proceeds to be applied to the account of
Vitafort as a result of the sales of securities during the period since the last
billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Mark Dodge
_____________________________
Mark Dodge
Telephone Number ______________________
_____________________________
Date
<PAGE>
EXHIBIT 99.05
August 20, 1997
Michael Donahue
Donahue, Mesereau & Leids
1900 Avenue of the Stars, Suite 2700
Los Angeles, CA 90067
Re: Billing and Payments in Kind
Dear Michael Donahue:
This is to confirm that you have agreed to accept 20,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf by your firm (Donahue, Mesereau & Leids).
The terms under which the securities are to be accepted and calculated are as
follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Michael Donahue shall have the option to dispose of the Shares in the
open market, in an orderly manner, during the ensuing 30 days from the date of
issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Michael Donahue may choose, at his own discretion, to keep the Shares
beyond the thirty (30) day period. In such case, Donahue, Mesereau & Leids will
post a credit to the account of Vitafort in an amount equal to the closing bid
price as of the date of issue less five percent (5%) for estimated sales costs.
The date of issue shall be defined as the date of the transmittal letter to you
from Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Michael Donahue and/or Donahue, Mesereau & Leids shall
hold Vitafort harmless for any decline in the market price of the securities
issued herein.
<PAGE>
5) Michael Donahue, via Donahue, Mesereau & Leids, will continue to bill
Vitafort for services and appropriate fees on a periodic basis in the normal
course of business. These billings will clearly include notations and
supporting documentation, such as broker confirmations, pertaining to the net
proceeds to be applied to the account of Vitafort as a result of the sales of
securities during the period since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Michael Donahue
_____________________________
Michael Donahue
Telephone Number ______________________
_____________________________
Date
<PAGE>
EXHIBIT 99.06
[LETTERHEAD OF VITAFORT INTERNATIONAL CORPORATION]
August 20, 1997
Frank Hariton
1065 Dobbs Ferry Road
White Plains, NY 10607
Re: Billing and Payments in Kind
Dear Frank:
This is to confirm that you have agreed to accept 10,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf. The terms under which the securities are
to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Frank Hariton shall have the option to dispose of the Shares in the
open market, in an orderly manner, during the ensuing 30 days from the date of
issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Frank Hariton may choose, at his own discretion, to keep the Shares
beyond the thirty (30) day period. In such case, Frank Hariton will post a
credit to the account of Vitafort in an amount equal to the closing bid price as
of the date of issue less five percent (5%) for estimated sales costs. The date
of issue shall be defined as the date of the transmittal letter to you from
Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Frank Hariton shall hold Vitafort harmless for any
decline in the market price of the securities issued herein.
<PAGE>
5) Frank Hariton will continue to bill Vitafort for services and
appropriate fees on a periodic basis in the normal course of business. These
billings will clearly include notations and supporting documentation, such as
broker confirmations, pertaining to the net proceeds to be applied to the
account of Vitafort as a result of the sales of securities during the period
since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
- ------------------------
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Frank Hariton
- -----------------------------
Frank Hariton
Telephone Number
----------------------
- -----------------------------
Date
<PAGE>
EXHIBIT 99.07
August 20, 1997
Julia Holbert
62510 Stenkamp Road
Bend, OR 97701
Re: Billing and Payments in Kind
Dear Julia:
This is to confirm that you have agreed to accept 20,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf. The terms under which the securities are
to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Julia Holbert shall have the option to dispose of the Shares in the
open market, in an orderly manner, during the ensuing 30 days from the date of
issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Julia Holbert may choose, at her own discretion, to keep the Shares
beyond the thirty (30) day period. In such case, Julia Holbert will post a
credit to the account of Vitafort in an amount equal to the closing bid price as
of the date of issue less five percent (5%) for estimated sales costs. The date
of issue shall be defined as the date of the transmittal letter to you from
Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Julia Holbert shall hold Vitafort harmless for any
decline in the market price of the securities issued herein.
<PAGE>
5) Julia Holbert will continue to bill Vitafort for services and
appropriate fees on a periodic basis in the normal course of business. These
billings will clearly include notations and supporting documentation, such as
broker confirmations, pertaining to the net proceeds to be applied to the
account of Vitafort as a result of the sales of securities during the period
since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Julia Holbert
- -----------------------------
Julia Holbert
Telephone Number
----------------------
- -----------------------------
Date
<PAGE>
EXHIBIT 99.08
August 20, 1997
Robert Luke
3430 Lake Terrace Road
Elk Grove, CA 95758
Re: Billing and Payments in Kind
Dear Robert:
This is to confirm that you have agreed to accept 16,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf. The terms under which the securities are
to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Robert Luke shall have the option to dispose of the Shares in the open
market, in an orderly manner, during the ensuing 30 days from the date of issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Robert Luke may choose, at his own discretion, to keep the Shares
beyond the thirty (30) day period. In such case, Robert Luke will post a credit
to the account of Vitafort in an amount equal to the closing bid price as of the
date of issue less five percent (5%) for estimated sales costs. The date of
issue shall be defined as the date of the transmittal letter to you from
Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Robert Luke shall hold Vitafort harmless for any decline
in the market price of the securities issued herein.
<PAGE>
5) Robert Luke will continue to bill Vitafort for services and appropriate
fees on a periodic basis in the normal course of business. These billings will
clearly include notations and supporting documentation, such as broker
confirmations, pertaining to the net proceeds to be applied to the account of
Vitafort as a result of the sales of securities during the period since the last
billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Robert Luke
- ------------------------
Robert Luke
Telephone Number (213) 931-3588
----------------------
8/22/97
- -----------------------------
Date
<PAGE>
EXHIBIT 99.09
August 20, 1997
Mr. Wayne Mansfield, President
AVIAD
250 Clark St.
North Andover, MA 01845
Re: Billing and Payments in Kind
Dear Wayne:
This is to confirm that you have agreed to accept 33,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf. The terms under which the securities are
to be accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Wayne Mansfield shall have the option to dispose of the Shares in the
open market, in an orderly manner, during the ensuing 30 days from the date of
issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Wayne Mansfield may choose, at his own discretion, to keep the Shares
beyond the thirty (30) day period. In such case, Wayne Mansfield will post a
credit to the account of Vitafort in an amount equal to the closing bid price as
of the date of issue less five percent (5%) for estimated sales costs. The date
of issue shall be defined as the date of the transmittal letter to you from
Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Wayne Mansfield shall hold Vitafort harmless for any
decline in the market price of the securities issued herein.
<PAGE>
5) Wayne Mansfield will continue to bill Vitafort for services and
appropriate fees on a periodic basis in the normal course of business. These
billings will clearly include notations and supporting documentation, such as
broker confirmations, pertaining to the net proceeds to be applied to the
account of Vitafort as a result of the sales of securities during the period
since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Wayne Mansfield
- -----------------------------
Wayne Mansfield
Telephone Number
----------------------
- -----------------------------
Date
<PAGE>
EXHIBIT 99.10
August 20, 1997
Michael M. Markow
15760 Ventura Boulevard, Suite 1020
Encino, CA 91436
Re. Billing and Payments in Kind
Dear Michael:
This is to confirm that you have agreed to accept up to 200,000 shares of
unrestricted, tradable common stock of Vitafort International Corporation is
payment on account of Vitafort for agreed services rendered on our behalf by you
and your firm, Worldwide Corporate Finance, as provided hereinafter:
1. Vitafort has issued to you an option to purchase up to 200,000 shares of
common stock at a purchase price of $1.00 per share, exerciseable for a
period of one year from the date hereof (the "Option").
2. You have agreed to perform certain investor relations consulting services
for the company, in exchange for which Vitafort agrees to compensate you as
provided hereinafter.
3. You shall submit invoices to the company on a monthly basis, stating the
nature of the services rendered and the amount due from Vitafort on account
thereof. Concurrently therewith, you shall submit a request to partially
exercise the Option for that number of shares which if then sold at the
prevailing market price, would cover the dollar amount of your invoice,
e.g., if the charges invoiced were $30,000, and the prevailing market price
were then $1.50, your request to exercise the Option would be for 20,000
shares.
4. Upon receipt and approval of each such invoice, Vitafort will issue shares
in accordance with your exercise request, in lieu of (a) requiring cash
from you to exercise the Option, and (b) paying cash to you in satisfaction
of the approved invoice amount.
5. You shall have the option to dispose of any shares so acquired in the open
market, in an order manner, during the ensuing 30 days from the date of
issue.
6. The net proceeds received from such sale shall be considered as payment for
the account of Vitafort and shall be applied against the approved invoiced
amount as provided for above. Net proceeds is defined as the sale price of
the securities less the sales commission cost and sundry fees charged by
the applicable stock broker (estimated not to exceed 6% of the gross sales
price).
7. You may elect, at your sole discretion, to keep the shares of stock beyond
such 30 day period, and in such event, you shall post a credit to the
account of Vitafort in an amount equal to the closing bid price as of the
date of issue less 5% for transaction costs. The date of issue shall be
defined as the date of the transmittal letter to from Vitafort sending the
securities to you. Thereafter, Vitafort shall have no interest in any of
the proceeds from sale of such shares, and you shall hold harmless Vitafort
for any decline in the market price of such securities.
8. If the shares are sold during such 30 day period, and the net sales
proceeds therefrom are not sufficient to cover the approved invoice amount,
Vitafort shall permit additional cashless partial exercises of the Option
in order to satisfy the full approved invoice amount, and any excess cash
received by you as a result thereof shall be applied as a credit to
Vitafort against future invoices.
<PAGE>
All subsequent invoices shall include notations and supporting documentation,
such as broker confirmations, pertaining to the net sales proceeds to be applied
to the account of Vitafort as a result of the sales of the securities during the
period since the last billing.
If the foregoing clearly and explicitly sets forth the mutual understanding
between you and Vitafort, please sign both of the copies of this document which
are enclosed, and return one such executed copy to the undersigned. Upon
receipt of the same, we will arrange for the appropriate documentation to be
effectuated which will permit the issuance of the shares as provided
hereinabove, and upon exercise of the Option as specified herein, will issue
such shares in accordance with the company's certificate of incorporation and
bylaws, and applicable securities laws and regulations.
Sincerely,
VITAFORT INTERNATIONAL CORPORATION
By:
------------------------------
Jack B. Spencer
Chief Operating Officer
Chief Financial Officer
ACCEPTED AND AGREED TO:
/s/ Michael M. Markow
- ---------------------------------
Michael M. Markow
Telephone Number:
---------------
Date:
----------------------
<PAGE>
EXHIBIT 99.11
Except as permitted by Section 8 hereof, no transfer shall be made at any time
unless the Company shall have been supplied with evidence reasonably
satisfactory to it that such transfer is not in violation of the Securities Act
of 1933, as amended (the "Securities Act").
VITAFORT INTERNATIONAL CORPORATION
_____________________________
OPTION TO PURCHASE
200,000
SHARES OF COMMON STOCK
AS HEREIN DESCRIBED
Dated: as of August 20, 1997
This certifies that, for value received
Michael M. Markow
15760 Ventura Blvd., Suite 1020
Encino, CA 91436
or registered assigns (the "Holder") is entitled, subject to the terms set forth
herein, to purchase from VITAFORT INTERNATIONAL CORPORATION (the "Company"), a
Delaware corporation having its offices at 1800 Avenue of the Stars, Suite 480,
Los Angeles, California 90067 Two Hundred Thousand (200,000) shares of the
Company's common stock subject to adjustment as set forth herein.
1. DEFINITIONS. Unless otherwise provided herein, the following terms shall be
-----------
defined as follows:
1.1 "Common Stock" or "Common Shares" shall initially refer to the
Company's common stock including Underlying Securities, as more fully set forth
in Section 4 hereof.
1.2 "Company" shall mean VITAFORT INTERNATIONAL CORPORATION, its
successors and assigns.
1.3 "Effective Date" shall mean August 20, 1997.
1.4 "Expiration Date" shall mean the day immediately preceding the First
anniversary date of the date of the Effective Date.
1.5 "Holder" shall mean Michael M. Markow or its registered assigns.
1.6 "Option" shall mean the Holder's right to purchase the Common Shares
pursuant to the terms contained herein.
1.7 "Option Price" or "Common Share Price" shall be One Dollar ($1.00) per
share subject to adjustment as set forth herein.
<PAGE>
1.8 "Purchase Form" shall mean the form attached hereto as Exhibit "A".
1.9 "Underlying Securities" or "Underlying Shares" or "Underlying Stock"
shall refer to the Common Shares or other securities or property issuable or
issued upon exercise of the Options.
1.10 "Registrable Securities" means:
(a) The Stock and any Common Stock issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of,
the Stock.
(b) The Common Stock issuable or previously issued on the exercise of
the Option and any Common Stock issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of,
the Common Stock issued on such exercise.
(c) The Common Stock issuable or previously issued on the exercise of
the Options and any Common Stock issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of,
the Common Stock issued on such exercise.
1.11 "Registrable Securities Holder" means any holder of outstanding
Registrable Securities, provided, however, that for the purpose of this
definition the holder of this Option shall be deemed to be the Holder of the
Registrable Securities into which that security is then exercisable.
2. TERMS OF OPTION.
---------------
2.1 EXERCISE OF OPTION. Subject to the terms of this Option, the purchase
------------------
rights represented by this Option may be exercised by the Holder hereof, in
whole or in part (but not as to less than a whole Common Share), at any time,
and from time to time, during the period commencing on the Effective Date and
terminating on the Expiration Date. An Option may be exercised by the Holder
upon presentation of this Option, with the Purchase Form duly executed, at the
Company's office (or such office or agency of the Company as it may designate in
writing to the Holder hereof by notice pursuant to the terms hereof), specifying
the number of Common Shares as to which the Option is being exercised, and upon
payment by the Holder to the Company of the Option Price. Such payment shall be
made by cash, by certified check, bank draft or confirmed wire transfer, in an
amount equal to the Option Price times the number of Common Shares then being
purchased hereunder.
The Company agrees that the Holder hereof shall be deemed the record owner
of such Underlying Securities as of the close of business on the date on which
this Option shall have been presented and payment made for such Underlying
Securities as aforesaid. Certificates for the Underlying Securities so obtained
shall be delivered to the Holder hereof within a reasonable time,
2
<PAGE>
not exceeding fourteen (14) days, after the rights represented by this Option
shall have been so exercised. If this Option shall be exercised in part only or
transferred in part by this Option for cancellation or partial transfer, upon
request by the Holder the Company shall deliver a new Option evidencing the
rights of the Holder hereof to purchase the balance of the Underlying Shares
which such Holder is entitled to purchase hereunder. Exercise in full of the
rights represented by this Option shall not extinguish any rights granted
related to registration of the Underlying shares under the Securities Act of
1933, as amended (the "Act"), as may be set forth elsewhere herein.
2.2. EXCHANGE OF OPTION. Subject to the provision of restrictions on
------------------
transfer related to the requirement for registration under the Act and such
other restrictions as may be set forth herein; (i) this Option is exchangeable
at the option of the Holder at the aforesaid office of the company for other
Options of different denominations entitling the Holder thereof to purchase in
the aggregate the same number of Common Shares as are purchasable hereunder; and
(ii) this Option may be divided or combined with other Options which carry the
same rights, in either case, upon presentation hereof at the aforesaid office of
the company together with a written notice, signed by the Holder hereof,
specifying the names and denominations in which new Options are to be issued,
and the payment of any transfer tax due in connection therewith.
3. ADJUSTMENT OF OPTION AND NUMBER OF SHARES. Subject and pursuant to the
-----------------------------------------
provisions of this Section 3, the Option Price and number of Common Shares
subject to this Option shall be subject to adjustment from time to time as set
forth hereinafter in this Section 3.
3.1 SUBDIVISION OF SHARES. If the Company shall at any time subdivide its
---------------------
outstanding common Shares by recapitalization, reclassification, stock dividend,
or split-up thereof or other means, the number of Common Shares subject to this
Option immediately prior to such subdivision shall be proportionately increased
and the Option Price shall be proportionately decreased, and if the Company
shall at any time combine the outstanding common Shares by recapitalization,
reclassification or combination thereof or other means, the number of Common
Shares subject to this Option immediately prior to such combination shall be
proportionately decreased and the Option Price shall be proportionately
increased. Any such adjustment and adjustment to the Option Price shall become
effective at the close of business on the record date for such subdivision or
combination.
3.2 DISTRIBUTION OF SECURITIES OR OTHER ASSETS. If the Company after the
------------------------------------------
date hereof shall distribute to all of the holders of its common shares any
securities including, but not limited to Common Shares, or other assets (other
than a cash distribution made as a dividend payable out of earnings or out of
any earned surplus legally available for dividends under the laws of the
jurisdiction of incorporation of the company), the Company shall be required to
make such equitable adjustment in the Option Price and the type and/or number of
Underlying Securities in effect immediately prior to the record date of such
distribution as may be necessary to preserve to the Holder of this Option rights
substantially proportionate to and economically equivalent to those enjoyed
hereunder by such Holder immediately prior to the happening of such
distribution. Any such adjustment made reasonably and in good faith by the
Company shall be
3
<PAGE>
final and binding upon the Holders and shall become effective as of the record
date for such distribution.
3.3 MINIMUM ADJUSTMENT. No adjustment in the number of Common shares
------------------
subject to this Option or the Option Price shall be required under this Section
3 unless such adjustment would require an increase or decrease in such number of
shares of at least 1% of the then adjusted number of Common shares issuable upon
exercise of the Option, provided, however, that any adjustments which by reason
of the foregoing are not required at the time to be made shall be carried
forward and taken into account and included in determining the amount of any
subsequent adjustment. If the Company shall make a record of the Holders of its
Common Shares for the purpose of entitling them to receive any dividend or
adjustment in the number of Common Shares subject to the Option shall be
required by reason of the making of such record.
3.4 REORGANIZATION. In case of any capital reorganization or
--------------
reclassification or change of the outstanding Common Shares (exclusive of a
change covered by Section 3.1 hereof or which solely affects the par value of
such Common Shares) or in the case of any merger or consolidation of the company
with or into another corporation (other than a consolidated or merger in which
the Company is the continuing corporation and which does not result in any
reclassification, change, capital reorganization or change in the ownership of
the outstanding Common Shares), or in the case of any sale or conveyance or
transfer of all or substantially all of the property of the Company and in
connection with which the Company is dissolved, the Holder of this Option shall
have the right thereafter (until the expiration of the right of exercise of this
Option) to receive upon the exercise hereof, for the same aggregate Option Price
payable hereunder immediately prior to such event, the kind and amount of shares
of stock or other securities or property receivable upon such reclassification,
change, capital reorganization, merger or consolidation, or upon the dissolution
following any sale or other transfer, by a holder of the number of Common Shares
of the Company equal to the number of common shares obtainable upon exercise of
this Option immediately prior to such event; and if any reorganization,
reclassification, change, merger, consolidation, sale or transfer also results
in a change in Common Shares covered by Section 3.1, then such adjustment shall
be made pursuant to both this Section 3.4 and Section 3.1. The provisions of
this Section 3.4 shall similarly apply to successive reclassification, or
capital reorganizations, mergers or consolidations, changes, sales or other
transfers.
3.5 FRACTIONAL SHARES. The Company shall not be required to issue
-----------------
fractional Common Shares upon any exercise of this Option. As to any final
fraction of a Common Share which the Holder of this Option would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to the same fraction of the
market value of a share of such stock on the business day preceding the day of
exercise or book value as determined by the Company's independent public
accountants if not publicly traded. The Holder of this Option, by his
acceptance hereof, expressly waives any right to receive any fractional shares
of stock upon exercise of this Option. As used herein, the current market price
per share at any date shall be the price of Common Shares on the business day
4
<PAGE>
immediately preceding the event requiring an adjustment hereunder and shall be
(A) if the principal trading market for such securities is an exchange or NASDAQ
NMS, the closing price on such exchange or NASDAQ NMS on such day provided if
trading of such Common Shares is listed on any consolidated tape, the price
shall be the closing price set forth on such consolidated tape or (B) if the
principal market for such securities is the over-the-counter market, the high
bid price on such date as set forth by NASDAQ SmallCap or the NASDAQ Electronic
Bulletin Board, if the security is not quoted on NASDAQ SmallCap or the NASDAQ
Electronic Bulletin Board, the high bid price as set forth in the National
Quotation Bureau sheet listing such securities for such day. Notwithstanding
the foregoing, if there is no reported closing price or high bid price, as the
case may be, on a date prior to the event requiring an adjustment hereunder,
then the current market price shall be determined as of the latest date prior to
such day for which such closing price or high bid price is available.
3.6 CERTIFICATE. Irrespective of any adjustments pursuant to this Section
-----------
3 in the Option Price or in the number, or kind, or class of shares or other
securities or other property obtainable upon exercise of this Option, and
Without impairing any such adjustment, this certificate representing this Option
may continue to express the Option Price and the number of Common Shares
obtainable upon exercise at the same price and number of Common Shares as are
stated herein.
3.7 DETERMINATION OF SHARES AND OPTION PRICE. Until this Option is
----------------------------------------
exercised, the Underlying Shares, and the Option Price shall be determined
exclusively pursuant to the provisions hereof.
3.8 ADJUSTMENT NOTICE. Upon any adjustment of this Option the Company
-----------------
shall give written notice thereof to the Holder which notice shall include the
number of Underlying Securities purchasable and the price per share upon
exercise of this Option and shall set forth in reasonable detail the events
which resulted in such adjustment.
4. COMMON STOCK. For the purposes of this Option, the terms "Common Shares" or
------------
"Common Stock" shall mean (i) the class of stock designated as the common stock
of the Company on the Effective Date or (ii) any other class of stock resulting
from successive changes or reclassification of such Common Stock consisting
solely of changes from par value to no par value, or from no par value to par
value or changes in par value. If at any time, as a result of an adjustment
made pursuant to Section 3, the securities or other property obtainable upon
exercise of this Option shall include shares or other securities of another
corporation or other property, then thereafter, the number of such other shares
or other securities or property so obtainable shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common Shares contained in Section 3, and
all other provisions of this Option with respect to Common Shares shall apply on
like terms to any such other shares or other securities or property. Subject to
the foregoing, and unless the context requires otherwise, all references herein
to Common Shares shall, in the event of an adjustment
5
<PAGE>
pursuant to Section 3, be deemed to refer also to any other shares or other
securities or property when obtainable as a result of such adjustments.
5. OBLIGATIONS OF THE COMPANY. The Company covenants and agrees that:
--------------------------
(a) During the period within which the rights represented by this Option
may be exercised, the Company shall, at all times, reserve and keep available
out of its authorized capital stock, solely for the purposes of issuance upon
exercise of this Option, such number of its Common Shares as shall be issuable
upon the exercise of this Option and at its expense will obtain the listing
thereof on all quotation systems or national securities exchanges on which the
Common Shares are then listed; and if at any time the number of authorized
Common Shares shall not be sufficient to effect the exercise of this Option, the
Company will take such corporate action as may be necessary to increase it
authorized but unissued Common Shares to such number of shares as shall be
sufficient for such purpose; the Company shall have analogous obligations with
respect to any other securities or property issuable upon exercise of this
Option:
(b) All Common Shares which may be issued upon exercise of the rights
represented by this Option will, upon issuance, be validly issued, fully paid,
nonassessable and free from all taxes, liens and charges with respect to the
issuance thereof; and
(c) All original issue taxes payable in respect of the issuance of Common
Shares upon the exercise of the rights represented by this Option shall be borne
by the Company, but in no event shall the Company be responsible or liable for
income taxes or transfer taxes upon the transfer of any Options.
6. VOTING RIGHTS. Until exercised, this Option shall not entitle the Holder
-------------
hereof to any voting rights or other rights as a shareholder of the Company,
except that the Holder of this Option shall be deemed to be a shareholder of the
company for the purpose of bringing suit on the ground that the issuance of
shares of stock of the Company is improper under the Delaware General
Corporation Law.
7. REGISTRATION RIGHTS OF HOLDERS.
------------------------------
7.1 Piggyback Registration. Subject to the provisions of section 7.2, if
----------------------
at any time or from time to time prior to the period which ends one (1) year
following the exercise period of this Option, as specified in Section 1.4 the
Company shall determine to file a registration statement under the Securities
Act for any sales of Shares of the Common Stock (or any warrants, units,
convertible securities, rights or other securities linked or bundled with any
shares of Common Stock register any of its securities), either for its own
account or otherwise, other than registrations relating solely to securities to
be issued by the Company in connection with any acquisition, employee stock
option or employee stock purchase or savings plan on Form S-4 or S-8 (or
successor forms) under the Securities Act, the Company will:
6
<PAGE>
(a) Give to each Holder written notice of its determination (which shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other state securities
laws) no later then thirty (30) days before its filing with the Securities and
Exchange Commission; and
(b) Include in such registration and any related qualification under blue
sky laws or other compliance, and in any underwriting in connection with the
registrations, all the Registrable Securities specified in a written request or
requests, made within such thirty (30) day period by Holder or Registrable
Securities Holders, except as set forth in Section 7.1 (c) and 7.2 below
(c) If the registration of which the Company gives notice under Section
7.1 (a) is for a registered public offering involving an underwriting, the
Company shall so advise the Registrable Securities Holders as part of the
written notice under that section. In that event, the right of any Registrable
Securities Holder to registration under such section shall be conditioned on the
participation in the underwriting of that Registrable Securities Holder and the
inclusion of that Registrable Security Holder's Registrable Securities in the
underwriting to the extent provided in this section. All Registrable Securities
Holders proposing to distribute their securities through the underwriting shall,
together with the Company, enter into an underwriting agreement in customary
form with the underwriter or underwriters selected by the Company.
Notwithstanding any other provision of this section, if the underwriter
determines in good faith that the inclusion of such Registrable Securities would
jeopardize the successful sale of such other securities proposed to be sold by
such underwriter, the underwriter may exclude all Common Stock except that being
sold on behalf of the Company or limit the amount of non-Company Common Stock,
in which case the Registrable Securities Holders shall be entitled to
participate in such registration in proportion to their relative holdings of
Registrable Securities, provided, if it is not the first registered offering the
--------
underwriter may limit the number of Registrable Securities to be included in the
registration and underwriting unless (and except and to the extent that) there
is included (or has previously been included) in a registration under this
Section 7, Shares representing at least 33-1/3% of the sum of (i) the Underlying
Shares obtained pursuant to a previous exercise of this Option, and (ii) the
Underlying Shares then obtainable upon exercise of this Option.
7.2 Rights Not Applicable. Notwithstanding the provisions of Section 7.1,
---------------------
the right of any Registrable Securities Holder to participate in a registration
as provided for in such section shall not exist under the following
circumstances:
(a) If at the time Company would otherwise be required to give the
notice to Registrable Securities Holders under Section 7.1(a), any Registrable
Securities Holder is then a holder of Underlying Shares which have been acquired
pursuant to exercise of the Option, and if such Registrable Securities Holder is
then permitted to sell or transfer such previously-acquired Underlying Shares
under Rule 144 of the Securities and Exchange
7
<PAGE>
Commission, then as to such shares only, the registration rights provided for in
Section 7.1 shall not apply.
(b) The right of Registrable Securities Holders to participate in a
registration as provided for in Section 7.1 shall expire one (1) year following
the period in which this Option can be exercised, as specified in Section 1.4.
7.3 Expenses. All expenses (which term does not include underwriting
--------
discounts or commissions) incurred in connection with any registration,
qualification, or compliance under Section 7.1, including, without limitation,
all registration, filing, and qualification fees, printing expenses, fees and
disbursements of counsel for the Company, and accounting fees incidental to or
required by such registration shall be borne by the Company; provided, however,
that:
(a) The Company shall be required to pay the fees in connection with
registrations, filings, and qualifications under state securities laws only with
regard to such registrations, filings, and qualifications as the initiating
Registrable Securities Holders may reasonably request in order to permit
adequate distribution and orderly marketing of its securities;
(b) If registration is effected under Section 7.1, any such expenses
which the Company is not required to pay shall be borne by the holders of the
securities so registered, pro-rata on the basis of the number of shares so
registered.
7.4 Company's Continuing Efforts. The Company will keep each
----------------------------
participating Registrable Securities Holder advised in writing of the initiation
and the completion of each registration, qualification, and compliance effected
by the Company under Section 7.1. At the expense of the party or parties at the
time bearing the expenses under Section 7.3 (b) the Company will:
(a) Keep such registration, qualification, or compliance effective
for six (6) months or until the Registrable Securities Holders have completed
the distribution described in the relevant registration statement, whichever
first occurs, provided that the each Registrable Securities Holder of
Registrable Securities included in such a registration, qualification, or
compliance shall use its best efforts to distribute those Registrable Securities
as promptly as practicable consistent with the distribution described in the
relevant registration statement and with requirements for the orderly marketing
of those securities; and
(b) Furnish as many prospectuses and other documents incident to the
registration, qualification, and compliance as Holder from time to time may
reasonably request.
8
<PAGE>
8. TRANSFERS. No transfer of all or a portion of the Option or Underlying
---------
Securities shall be made at any time unless such transfer is registered under
the Securities Act and registered or qualified pursuant to applicable state
securities laws or exemptions from such requirements are available and the
Company shall have been supplied with evidence reasonably satisfactory to it
that such transfer is not in violation of the Act and applicable state
securities laws. Subject to the satisfaction of the aforesaid condition and
upon surrender of this Option or certificates for any Underlying Securities at
the office of the Company, the Company shall deliver a new Option or Options or
new certificates or certificates for Underlying Securities to and in the name of
the assignee or assignees named therein. Any such certificate may bear a legend
reflecting the restrictions on transfer set forth herein.
9. LOST, STOLEN OR MUTILATED OPTION. If this Option is lost, stolen,
--------------------------------
mutilated or destroyed, the Company shall, on such terms as to indemnity or
otherwise as the Company may reasonably impose, issue a new Option of like
denomination, tenor and date. Any such new Option shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Option shall be at any time enforceable by
anyone.
10. ISSUANCE OF SUCCESSOR OPTION. Any Option issued pursuant to the provisions
----------------------------
of Section 9, or upon transfer, exchange, division or partial exercise of this
Option or combination thereof with another Option or Options, shall set forth
each provision set forth in this Option as each such provision is set forth
herein, and shall be duly executed on behalf of the Company by its chief
executive officer.
11. SURRENDER OF OPTION. Upon surrender of this Option for transfer or
-------------------
exchange or upon the exercise hereof, this Option shall be canceled by the
Company, and shall not be reissued by the Company and, except as provided in
Section 2 in case of a partial exercise or an exchange or Section 8 in case of a
transfer, or Section 9 in case of mutilation. Any new Option certificate shall
be issued promptly but not later than fourteen (14) days after receipt of the
old Option certificate.
12. SUCCESSORS. This Option shall inure to the benefit of and be binding upon
----------
the Holder hereof, the Company and their respective successors, heirs,
executors, legal representatives and assigns.
13. NOTICES. All notices required hereunder shall be in writing and shall be
-------
deemed given when telegraphed, delivered personally, or within two (2) days
after being sent by Federal Express, Airborne Express, UPS or other recognized
international overnight courier, to the party to whom such notice is intended,
at the address of such other party as set forth on the first page hereof, or at
such other address of which the Company or Holder has been advised by the notice
hereunder.
14. SEVERABILITY. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being
9
<PAGE>
intended that all of the rights and privileges of the Holders shall be
enforceable to the fullest extent permitted by law.
15. APPLICABLE LAW. The validity, interpretation and performance of this
--------------
Option and of the terms and provisions hereof shall be governed by the laws of
the State of California applicable to agreements entered into and performed
entirely in such state. The Federal and State Courts which sit in the County of
Los Angeles, State of California shall have exclusive jurisdiction over any
dispute arising hereunder.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by
its duly authorized officer as of August 20, 1997.
VITAFORT INTERNATIONAL CORPORATION
By:
------------------------------
Mark Beychok, President and
Chief Executive Officer
ACCEPTED AS OF THE EFFECTIVE DATE:
Michael M. Markow
By:
----------------------------------
Michael M. Markow
10
<PAGE>
EXHIBIT "A"
-----------
PURCHASE FORM
To Be Executed
Upon Exercise of Option
The undersigned record holder of the within Option hereby irrevocably
elects to exercise the right to purchase ______ Common Shares evidenced by the
within Option, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full.
The undersigned requests that certificates for such shares and Options
shall be issued in the name set forth below.
Dated:
--------------
By:
--------------------------------------
Signature
------------------------------------------
Print Name and Title of Signatory
------------------------------------------
Name to whom certificates are to be issued
if different from above.
Address:
-----------------------------------------------------------
Social Security No. or other identifying number:
---------------------------
If said number of shares and Options shall not be all of the shares purchasable
under the within Option, the undersigned requests that a new Option for the
unexercised portion be registered in the name of:
------------------------------------------
(Please Print)
Address:
-----------------------------------------------------------
Social Security No. or other identifying number:
---------------------------
Signature:
----------------------------------------
----------------------------------------
Print Name of Signatory
11
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers to _____________________________ (Social Security or I.D. No.
____________) the within Option, or that portion of this Option purchasable for
common shares together with all rights, title and interest therein, and does
hereby irrevocably constitute and appoint attorney to transfer such Option on
the register of the within named Company, with full power of substitution.
------------------------------------
Signature
Dated:
------------------------
Signature Guaranteed:
-----------------------------
12
<PAGE>
EXHIBIT 99.12
August 20, 1997
Erwin Maser
M. I. Solutions Group
1275 East Alta Dena Drive
Alta Dena, CA 91001
Re: Billing and Payments in Kind
Dear Erwin:
This is to confirm that you have agreed to accept up to 75,000 shares of
unrestricted, tradable common stock of Vitafort as payment on account of
Vitafort for agreed services and fees rendered on our behalf by your firm (M. I.
Solutions Group). The terms under which the securities are to be accepted and
calculated are as follows:
1) Vitafort will issue, at the earliest practical time, sufficient shares
to fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Erwin Maser shall have the option to dispose of the shares in the open
market, in an orderly manner, during the ensuring 30 days from the date of
issue.
3) The net proceeds received from the sale of the shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services or applied as a retainer for future services.
Net proceeds is defined as the sale price of the securities less the sales
commission cost and sundry fees charged by the stock broker (such costs should
not exceed approximately 6% of the gross sales price).
4) Erwin Maser may choose, at his own discretion, to keep the shares of
stock beyond the thirty (30) day period. In such case, M. I. Solutions Group
will post a credit to the account of Vitafort in an amount equal to the closing
bid price as of the date of issue less five percent (5%) for estimated sales
costs. The date of issue shall be defined as the date of the transmittal letter
to you from Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
shares in question and Erwin Maser and/or M. I. Solutions Group shall hold
Vitafort harmless for any decline in the market price of the securities issued
herein.
<PAGE>
5) Erwin Maser, via M. I. Solutions Group, will continue to bill Vitafort
for services and appropriate fees on a periodic basis in the normal course of
business. These billings will clearly include notations and supporting
documentation, such as broker confirmations, pertaining to the net proceeds to
be applied to the account of Vitafort as a result of the sales of securities
during the period since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation to approve and issue the shares in accordance with
the above, Vitafort International Corporation bylaws and Articles of
Incorporation, and S.E.C. rules and regulations.
Sincerely,
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Erwin Maser
_____________________________
Erwin Maser
Telephone Number
_____________________________
Date
<PAGE>
EXHIBIT 99.13
August 20, 1997
Richard Schuster
Schuster Flexible Packaging
5519 Jillson Street
Commerce, CA 90040
Re: Billing and Payments in Kind
Dear Richard:
This is to confirm that you have agreed to accept up to 20,000 shares of
unrestricted, tradable common stock of Vitafort as payment on account of
Vitafort for agreed services and fees rendered on our behalf by your firm
(Schuster Flexible Packaging). The terms under which the securities are to be
accepted and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, sufficient shares
to fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Richard Schuster shall have the option to dispose of the shares in the
open market, in an orderly manner, during the ensuring 30 days from the date of
issue.
3) The net proceeds received from the sale of the shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services or applied as a retainer for future services.
Net proceeds is defined as the sale price of the securities less the sales
commission cost and sundry fees charged by the stock broker (such costs should
not exceed approximately 6% of the gross sales price).
4) Richard Schuster may choose, at his own discretion, to keep the shares
of stock beyond the thirty (30) day period. In such case, Schuster Flexible
Packaging will post a credit to the account of Vitafort in an amount equal to
the closing bid price as of the date of issue less five percent (5%) for
estimated sales costs. The date of issue shall be defined as the date of the
transmittal letter to you from Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
shares in question and Richard Schuster and/or Schuster Flexible Packaging shall
hold Vitafort harmless for any decline in the market price of the securities
issued herein.
<PAGE>
5) Richard Schuster, via Schuster Flexible Packaging, will continue to
bill Vitafort for services and appropriate fees on a periodic basis in the
normal course of business. These billings will clearly include notations and
supporting documentation, such as broker confirmations, pertaining to the net
proceeds to be applied to the account of Vitafort as a result of the sales of
securities during the period since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation to approve and issue the shares in accordance with
the above, Vitafort International Corporation bylaws and Articles of
Incorporation, and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Richard Schuster
_____________________________
Richard Schuster
Telephone Number
_____________________________
Date
<PAGE>
EXHIBIT 99.14
August 20, 1997
Allan Zackler
Zackler & Associates
3824 Grand Avenue, Suite 100
Oakland, CA 94610
Re: Billing and Payments in Kind
Dear Allan:
This is to confirm that you have agreed to accept 25,000 shares of unrestricted,
tradable common stock of Vitafort ("Shares") as payment on account of Vitafort
for services rendered on our behalf by your firm (Zackler & Associates). The
terms under which the securities are to be accepted and calculated are as
follows:
1) Vitafort will issue, at the earliest practical time, the Shares to
fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Allan Zackler shall have the option to dispose of the Shares in the
open market, in an orderly manner, during the ensuing 30 days from the date of
issue.
3) The net proceeds received from the sale of the Shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services rendered. Net proceeds is defined as the sale
price of the securities less the sales commission cost and sundry fees charged
by the stock broker (such costs should not exceed approximately 6% of the gross
sales price).
4) Allan Zackler may choose, at his own discretion, to keep the Shares
beyond the thirty (30) day period. In such case, Zackler & Associates will post
a credit to the account of Vitafort in an amount equal to the closing bid price
as of the date of issue less five percent (5%) for estimated sales costs. The
date of issue shall be defined as the date of the transmittal letter to you from
Vitafort sending the securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
Shares in question and Allan Zackler and/or Zackler & Associates shall hold
Vitafort harmless for any decline in the market price of the securities issued
herein.
<PAGE>
5) Allan Zackler, via Zackler & Associates, will continue to bill Vitafort
for services and appropriate fees on a periodic basis in the normal course of
business. These billings will clearly include notations and supporting
documentation, such as broker confirmations, pertaining to the net proceeds to
be applied to the account of Vitafort as a result of the sales of securities
during the period since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation and will issue the Shares in accordance with the
above, Vitafort International Corporation bylaws and Articles of Incorporation,
and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Allan Zackler
_____________________________
Allan Zackler
Telephone Number ______________________
_____________________________
Date
<PAGE>
EXHIBIT 99.15
August 20, 1997
Michael Zweig, Esq.
Sacks Zweig & Burris, LLP
100 Wilshire Boulevard, Suite 1300
Santa Monica, CA 90401
Re: Billing and Payments in Kind
Dear Michael:
This is to confirm that you have agreed to accept up to 100,000 shares of
unrestricted, tradable common stock of Vitafort as payment on account of
Vitafort for agreed services and fees rendered on our behalf by your firm (Sacks
Zweig & Burris, LLP). The terms under which the securities are to be accepted
and calculated are as follows:
1) Vitafort will issue, at the earliest practical time, sufficient shares
to fully cover the outstanding amounts due and a reasonable estimate of the
retainer necessary to cover the coming month's planned activity. This
reconciliation/issue process will be repeated as frequently as necessary until
the full number of shares have been issued.
2) Michael Zweig shall have the option to dispose of the shares in the
open market, in an orderly manner, during the ensuing 30 days from the date of
issue.
3) The net proceeds received from the sale of the shares shall be
considered as payment for the account of Vitafort and shall be applied against
open valid invoices for services or applied as a retainer for future services.
Net proceeds is defined as the sale price of the securities less the sales
commission cost and sundry fees charged by the stock broker (such costs should
not exceed approximately 6% of the gross sales price).
4) Michael Zweig may choose, at his own discretion, to keep the shares of
stock beyond the thirty (30) day period. In such case, Sacks Zweig & Burris,
LLP will post a credit to the account of Vitafort in an amount equal to the
closing bid price as of the date thirty (30) days from the date of issue less
five percent (5%) for estimated sales costs. The date of issue shall be defined
as the date of the transmittal letter to you from Vitafort sending the
securities to you.
Vitafort shall bear no interest in the future sale proceeds of the above
shares in question and Michael Zweig and/or Sacks Zweig & Burris, LLP shall hold
Vitafort harmless for any decline in the market price of the securities issued
herein.
<PAGE>
5) Michael Zweig, via Sacks Zweig & Burris, LLP, will continue to bill
Vitafort for services and appropriate fees on a periodic basis in the normal
course of business. These billings will clearly include notations and
supporting documentation, such as broker confirmations, pertaining to the net
proceeds to be applied to the account of Vitafort as a result of the sales of
securities during the period since the last billing.
If the above clearly and explicitly sets forth the mutual understanding
between the two parties, please sign both copies of this document and return one
copy to the undersigned. Upon receipt of the signed copy, we will arrange for
the appropriate documentation to approve and issue the shares in accordance with
the above, Vitafort International Corporation bylaws and Articles of
Incorporation, and S.E.C. rules and regulations.
Sincerely,
/s/ Jack B. Spencer
Jack B. Spencer
Chief Operating Officer/
Chief Financial Officer
Agreed and Accepted:
/s/ Michael Zweig
_____________________________
Michael Zweig
Telephone Number
_____________________________
Date
