Exhibit 10.23


 


MARK RETZLOFF


HORIZON ORGANIC HOLDING CORPORATION


 


Agreement and Release upon Resignation


 


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


 


Recitals


 


1..                                  Retzloff
has this day resigned from the Board of Directors of the Company.At the time of
his resignation, there are outstanding certain stock options granted to
Retzloff by the Company, some of which have by their terms vested and some of
which have not by their terms vested.


 


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


 


3..                                  The
parties desire that the outstanding, unvested options be vested, that the
Separation Agreement be acknowledged as continuing in effect, and that they
mutually and generally release all claims against one another except as
specifically provided herein.


 


Agreement


 


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


 


1.                                     Vesting
of Options.All stock options heretofore granted to Retzloff by the Company that
have not heretofore vested and either been exercised or expired are hereby
vested 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.                                     Continuation
of Separation Agreement.The Separation Agreement is acknowledged to continue in
effect without alteration by this subsequent Agreement and without release or
termination by reason of the mutual general releases contained in this
Agreement.In the event any provision in this Agreement is inconsistent with any
provision of the Separation Agreement, the provision of the Separation
Agreement shall control.


 


3.                                     Releases.


 


(a)                                (1)                                    As
used herein, the term “Claims” with respect to a person includes any and
all  claims, damages, losses, costs,
expenses (including attorneys’ and other professional and consulting fees), and
causes of action of that person and any and all liabilities, debts, and
obligations to that person, accruing or claimed to have accrued at any time prior
to the date of this Agreement, whether or not that person or any other person
knows 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 or
contingent, whether or not any such Claim is for negligence or other fault, and
whether or not any such Claim relates to Retzloff’s employment by the Company
or his service as a member of the board of directors of the Company.








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


 


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


 


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


 


(c)                                The
Company, for itself and for its subsidiaries, releases, waives, and discharges
Retzloff from the Claims the Company or any or all of its subsidiaries may have
against Retzloff.Further,      without
limiting the foregoing, the Company releases, waives, and discharges Retzloff,
Rudi’s Bakery, Inc. (a Colorado corporation) and its subsidiaries, and the
directors, officers, employees, and agents of Rudi’s Bakery, Inc. or its
subsidiaries, from any claims under Section 3 of the Separation Agreement
arising from the hiring of Steve Buszka at Rudi’s Bakery, Inc.


 


4.                                     Miscellaneous
Provisions.


 


(a)                                This
Agreement shall be construed as though prepared by both of the parties.This
Agreement, and the performances of the parties hereunder, shall be governed by
the laws of the State of Colorado without giving effect to the principles of
conflicts of laws that would otherwise provide for the application of the
substantive law of another jurisdiction.Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
must 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 Court
for such state, and each party hereby consents for itself and its successors
and assigns to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein.Process in any action or proceeding referred to in this
section may be served on either party anywhere in the world, whether within or
without the State of Colorado.


 


(b)                               This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
and their heirs, personal representatives, successors, and assigns, but neither
party may assign this Agreement or any right or obligation hereunder to any
person without the written consent of the other party.No assignment of this
Agreement or of any right or obligation hereunder shall relieve the assignor of
its obligations hereunder without the written consent of the other party.








(c)                                This
Agreement may not be modified except by a writing signed by the party or
parties to be burdened by the effects of the modification.Neither party shall
be deemed to have waived any right or remedy under or with respect to this
Agreement unless such waiver is expressed in a writing signed by such party.No
waiver of any right or remedy under or with respect to this Agreement by a
party on any occasion or in any circumstance shall be deemed to be a waiver of
any other right or remedy on that occasion or in that circumstance nor a waiver
of the same or of any other right or remedy on any other occasion or in any
other circumstance.


 


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


 


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


 


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


 


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


 


In witness
whereof, the parties have executed and delivered this Agreement and Release
upon 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