**Exhibit 10.23**

 

MARK RETZLOFF

HORIZON ORGANIC HOLDING CORPORATION

 

Agreement and Release upon Resignation

 

This Agreementand Release upon Resignation (this “Agreement”) is made as of July 29,2002, by and between Mark Retzloff (“Retzloff”) and Horizon Organic HoldingCorporation (the “Company”), a Colorado corporation.

 

Recitals

 

1..                                  Retzloffhas this day resigned from the Board of Directors of the Company.At the time ofhis resignation, there are outstanding certain stock options granted toRetzloff by the Company, some of which have by their terms vested and some ofwhich have not by their terms vested.

 

2..                                  Retzloffand the Company are also parties to that certain Separation Agreement andRelease (the “Separation Agreement”) executed on or about April 5, 2001.

 

3..                                  Theparties desire that the outstanding, unvested options be vested, that theSeparation Agreement be acknowledged as continuing in effect, and that theymutually and generally release all claims against one another except asspecifically provided herein.

 

Agreement

 

Now,therefore, in consideration of the premises and the parties mutual covenantsand releases contained herein, the parties agree as follows:

 

1.                                     Vestingof Options.All stock options heretofore granted to Retzloff by the Company thathave not heretofore vested and either been exercised or expired are herebyvested as of the date hereof.Such options shall terminate at the earlier of(a) the dates stated in the grants thereof, respectively, or(b) October 27, 2002.

 

2.                                     Continuationof Separation Agreement.The Separation Agreement is acknowledged to continue ineffect without alteration by this subsequent Agreement and without release ortermination by reason of the mutual general releases contained in thisAgreement.In the event any provision in this Agreement is inconsistent with anyprovision of the Separation Agreement, the provision of the SeparationAgreement shall control.

 

3.                                     Releases.

 

(a)                                (1)                                    Asused herein, the term “Claims” with respect to a person includes any andall  claims, damages, losses, costs,expenses (including attorneys’ and other professional and consulting fees), andcauses of action of that person and any and all liabilities, debts, andobligations to that person, accruing or claimed to have accrued at any time priorto the date of this Agreement, whether or not that person or any other personknows of or suspects the existence, extent, or amount of any such Claim,whether or not any such Claim is of known or unknown amount or is absolute orcontingent, whether or not any such Claim is for negligence or other fault, andwhether or not any such Claim relates to Retzloff’s employment by the Companyor his service as a member of the board of directors of the Company.

(2)                                  Theterm “Claims” shall not include any claim, damage, loss, cost, expense, orcause of action of any person, or any liability, debt, or obligation to anyperson, arising under or with respect to the Separation Agreement, any of thestock option grants referred to in Section 1, or this Agreement.

 

(3)                                  Theterm “Claims” also shall not include any claim, damage, loss, cost, expense, orcause of action of Retzloff, or any liability, debt, or obligation of theCompany to Retzloff, arising under or with respect to any right Retzloff has toindemnification from the Company or from any of its subsidiaries by reason ofhis having served as an officer, director, employee, or agent of the Company orany of its subsidiaries, regardless of whether such right to indemnificationarises under the Company’s or a subsidiary’s articles of incorporation, bylaws,agreement, or otherwise.

 

(b)                               Retzloffreleases, waives, and discharges the Company and its subsidiaries, and its andits subsidiary’s respective directors, officers, employees, and agents(collectively, the “Retzloff Releasees”) from the Claims he may have againstthe Retzloff Releasees, or any of them.

 

(c)                                TheCompany, for itself and for its subsidiaries, releases, waives, and dischargesRetzloff from the Claims the Company or any or all of its subsidiaries may haveagainst Retzloff.Further,      withoutlimiting the foregoing, the Company releases, waives, and discharges Retzloff,Rudi’s Bakery, Inc. (a Colorado corporation) and its subsidiaries, and thedirectors, officers, employees, and agents of Rudi’s Bakery, Inc. or itssubsidiaries, from any claims under Section 3 of the Separation Agreementarising from the hiring of Steve Buszka at Rudi’s Bakery, Inc.

 

4.                                     MiscellaneousProvisions.

 

(a)                                ThisAgreement shall be construed as though prepared by both of the parties.ThisAgreement, and the performances of the parties hereunder, shall be governed bythe laws of the State of Colorado without giving effect to the principles ofconflicts of laws that would otherwise provide for the application of thesubstantive law of another jurisdiction.Any action or proceeding seeking toenforce any provision of, or based on any right arising out of, this Agreementmust be brought against either party in the courts of the State of Colorado or,if a party has or can obtain jurisdiction, in the United States District Courtfor such state, and each party hereby consents for itself and its successorsand assigns to the jurisdiction of such courts (and of the appropriateappellate courts) in any such action or proceeding and waives any objection tovenue laid therein.Process in any action or proceeding referred to in thissection may be served on either party anywhere in the world, whether within orwithout the State of Colorado.

 

(b)                               ThisAgreement shall be binding upon, and shall inure to the benefit of, the partiesand their heirs, personal representatives, successors, and assigns, but neitherparty may assign this Agreement or any right or obligation hereunder to anyperson without the written consent of the other party.No assignment of thisAgreement or of any right or obligation hereunder shall relieve the assignor ofits obligations hereunder without the written consent of the other party.

(c)                                ThisAgreement may not be modified except by a writing signed by the party orparties to be burdened by the effects of the modification.Neither party shallbe deemed to have waived any right or remedy under or with respect to thisAgreement unless such waiver is expressed in a writing signed by such party.Nowaiver of any right or remedy under or with respect to this Agreement by aparty on any occasion or in any circumstance shall be deemed to be a waiver ofany other right or remedy on that occasion or in that circumstance nor a waiverof the same or of any other right or remedy on any other occasion or in anyother circumstance.

 

(d)                               Inthe event a party is in default under this Agreement, it shall be liable to theother party for the reasonable attorney and other professional and witness feesincurred by the other party in pursuing remedies for such default, whether ornot any legal or equitable action is commenced.The remedies provided in thisAgreement are cumulative, and not exclusive, and are in addition to allremedies otherwise provided by law and equity with respect to any breach ofthis Agreement..

 

(e)                                Headingsand captions contained in this Agreement are solely for the convenience of theparties and are not to be considered in interpreting or construing thisAgreement or the parties’ rights, remedies, and obligations hereunder.The words“herein,” “hereof,” and “hereunder,” when used in this Agreement, refer to thisAgreement in its entirety.The word “include” and its derivatives mean by way ofexample and not by way of exclusion or limitation.Words in the singular includethe plural and words in the plural include the singular, according to therequirements of the context.Words importing a gender include all genders.

 

(f)                                  ThisAgreement contains the entire agreement of the parties with respect to thematters provided for herein and supersedes all prior agreements, whether oralor written, and all contemporaneous oral agreements with respect to suchmatters, except that this Agreement does not supersede the SeparationAgreement, as to which Separation Agreement the provisions of Section 2 apply.Further,each party waives all claims, whether in tort or otherwise, for prior negligentmisrepresentations made by the other party with respect to the matters providedfor herein.

 

(g)                               ThisAgreement may be executed in one or more counterparts, each of which shall bedeemed to be an original, and all of which together shall be deemed toconstitute but one and the same instrument.This Agreement shall be effective ifeach party has executed and delivered at least one counterpart hereof.

 

In witnesswhereof, the parties have executed and delivered this Agreement and Releaseupon Resignation as of the date first stated above.

 
| Horizon  Organic Holding Corporation |
|--------------------------------------|
|                                 |   |
|                                 | By: | /s/ Charles  F. Marcy |   |
|                                 |   | Charles F.  Marcy, President |

 
| /s/ Mark  Retzloff |   |   |   |
|--------------------|--------|--------|--------|
| Mark Retzloff      |   |   |