Exhibit 10.12 Nutra Pharma Corp.
XXXXXXXX-XXXX.XXX(R)
00000 Xxxxxx Xxxx #000, Xxxxxxxxxx XX 00000
(000) 000-0000
October 8, 2004
Nutra Pharma Corporation
Xxx X.Xxxxxxx - CEO
Dear Xx. Xxxxxxx:
This letter agreement (the "Agreement") confirms the terms and conditions
of the engagement of XXXXXXXX-XXXX.XXX, by Nutra Pharma Corporation (the
"Company") to render certain investor relations and financial communication
services to the Company which are referred to herein.
1. Services. XXXXXXXX-XXXX.XXX agrees to perform investor relations
services for the Company which are ordinarily and customarily performed by an
investor relations firm on behalf of a corporate client. These services include,
but are not limited to, (a) distribution of financial and general press
releases; (b) (if needed) drafting of a corporate profile for distribution to
the Company's shareholders and the public; (c) Profiling NUTRA PHARMA
CORPORATION (NPHC) Corporation and links to NUTRA PHARMA CORPORATION (NPHC)
Corporation website hosted by Investorgate. com's financial website; (d)
handling new and existing investors through personal contact via phone, fax and
computer (e) Setting up broker presentations utilizing a variety of shows funded
by NUTRA PHARMA CORPORATION (NPHC) and most importantly (f) introduction of the
Company to the financial brokerage community and investors. (3500 strong opt-in
investors/brokers and analysts)
2. Non-exclusive Relationship; No Guarantee. Commencing November 1, 2004
(the "Commencement Date"), XXXXXXXX-XXXX.XXX will act as a non-exclusive agent
of the Company and shall use its best efforts in the performance of its services
described above. Nothing in this Agreement shall be construed as limiting
XXXXXXXX-XXXX.XXX right to represent other clients, except that
XXXXXXXX-XXXX.XXX agrees not to represent any other person or entity which is in
direct competition with the Company unless XXXXXXXX-XXXX.XXX first obtains the
Company's written consent, which shall not be unreasonably withheld.
3. Fees: For the services to be rendered and performed by XXXXXXXX-XXXX.XXX
during the term of the Agreement, Client shall, upon acceptance of this
Agreement: Pay to INVESTORGATE. COM a total of one hundred thousand (100,000)
shares of NPHC restricted stock for twelve (12) months of service.
4. Expenses. In addition to any fees that may be payable hereunder, the
Company agrees, from time to time upon request, to reimburse XXXXXXXX-XXXX.XXX
for all reasonable out of pocket expenses incurred by it in the performance of
services on behalf of the Company. Such out of pocket expenses shall include any
travel on behalf of The Company. It is understood by INVESTORGATE. COM, that
individual expenses in excess of $200.00 (two hundred dollars) will be approved,
in advance, by the Company in writing. Any disputed expense must be made known
to INVESTORGATE. COM in writing within 5 days of receipt. Out of pocket expenses
will be billed on or about the fifteenth of each month and will be due and
payable with 10 days of receipt.
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5. Termination of the Engagement. XXXXXXXX-XXXX.XXX's engagement hereunder
may be terminated by either the Company or XXXXXXXX-XXXX.XXX at any time, with
or without cause, upon written advice to that effect to the other party;
provided, however, that INVESTORGATE. COM will be entitled to (a) its full fee
for the first One Hundred and Eighty (180) days of the current program
activities hereof regardless of when this Agreement is terminated if terminated
by the Company.
6. Indemnity.
(a) Indemnification by the Company. In connection with INVESTORGATE. COM's
engagement hereunder, including modifications or future additions to this
engagement and the related activities prior to this date, the Company agrees
that it will indemnify, hold harmless and defend XXXXXXXX-XXXX.XXX and its
affiliates, any director, officer, agent or employee of XXXXXXXX-XXXX.XXX or any
of its affiliates and each other person, if any, controlling INVESTORGATE. COM
or any of its affiliates and each of their successors and assigns (collectively,
the "XXXXXXXX-XXXX.XXX Group") against and in respect of any and all losses,
damages, claims, obligations, demands, actions, suits, proceedings, assessments,
liabilities, judgments, recoveries and deficiencies, costs and expenses
(including, without limitation, reasonable attorneys' fees and costs and
expenses incurred in investigating, preparing, defending against or prosecuting
any litigation, claim, proceeding or demand), all on an after-tax basis, less
any amounts actually paid as insurance reimbursement, of any kind or character
(collectively, a "Loss"), (i) related to, arising out of or result from (A) oral
or written information provided by the Company, the Company's employees or the
Company's other agents, for use by XXXXXXXX-XXXX.XXX in connection with
INVESTORGATE. COM's performance of services under this Agreement; (B) other
action or failure to act by the Company, the Company's employees or the
Company's other agents or by XXXXXXXX-XXXX.XXX at the Company's request or with
the Company's consent or (C) any breach of, or failure by the Company to fully
perform, or any inaccuracy in, any of the representations, warranties, covenants
or agreements of the Company in this Agreement or (ii) otherwise related to or
arising out of the engagement of XXXXXXXX-XXXX.XXX pursuant to this Agreement or
any transaction or conduct in connection therewith except that this clause (ii)
and clause (i)(B) relating to actions by XXXXXXXX-XXXX.XXX, shall not apply with
respect to any losses that are finally judicially determined to have resulted
primarily from XXXXXXXX-XXXX.XXX's bad faith or gross negligence.
(b) Notice of Claim. Whenever XXXXXXXX-XXXX.XXX learns of or discovers any
matter which may give rise to a claim for indemnification (the "Claim") against
the Company under this Section 7 (the "Indemnity Obligor"), as the indemnified
party (the "Indemnified Party"), shall give notice to the Indemnity Obligor of
the Claim. With respect to Claims which are the subject of actions, suits, or
proceedings threatened or asserted in writing by any third party (a "Third Party
Claim"), the Indemnified Party shall, within 15 days following receipt of such
Third Party Claim, promptly notify the Indemnity Obligor in writing of any Claim
for recovery, specifying in reasonable detail the nature of the Loss and the
amount of the liability estimated to arise therefrom. If the Indemnified Party
does not so notify the Indemnity Obligor within 15 days of its discovery of a
Third Party Claim, such Claim shall be barred only to the extent that the
Indemnity Obligor is prejudiced by such failure to notify. The Indemnified Party
shall provide to the Indemnity Obligor as promptly as practicable thereafter all
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information and documentation reasonably requested by the Indemnity Obligor to
verify the Claim asserted.
(c) Defense. If the facts relating to a Loss arise out a Third Party Claim,
or if there is any claim against a third party available by virtue of the
circumstances of the Loss, the Indemnity Obligor shall, by giving written notice
to the Indemnified Party within 15 days following its receipt of the notice of
such claim, assume the defense or the prosecution thereof, including the
employment of counsel or accountants, reasonably satisfactory to the Indemnified
Party, at its cost and expense; provided, however, that during the interim the
Indemnified Party shall use its best efforts to take all action (not including
settlement) reasonably necessary to protect against further damage or loss with
respect to the Loss. The Indemnified Party shall have the right to employ
counsel separate from counsel employed by the Indemnity Obligor in any such
action and to participate therein, but the fees and expenses of such counsel
shall be at the Indemnified Party's own expense, unless (a) the employment
thereof has been specifically authorized by the Indemnity Obligor, (b) such
Indemnified Party has been advised by counsel reasonably satisfactory to the
Indemnity Obligor that there may be one or more legal defenses available to it
which are different from or additional to those available to the Indemnity
Obligor and in the reasonable judgment of such counsel it is advisable for such
Indemnified Party to employ separate counsel, or (c) the Indemnity Obligor has
failed to assume the defense of such action and employ counsel reasonably
satisfactory to the Indemnified Party. Whether or not the Indemnity Obligor
defends or prosecutes such claim, all the parties hereto shall cooperate in the
defense or prosecution thereof and shall furnish such records, information and
testimony and shall attend such conferences, discovery proceedings and trial as
may be reasonably requested in connection therewith. The Indemnity Obligor shall
not be liable for any settlement of any such claim effected without its prior
written consent. In the event of payment by the Indemnity Obligor to the
Indemnified Party in connection with any Loss arising out of a Third Party
Claim, the Indemnity Obligor shall be subrogated to and shall stand in the place
of the Indemnified Party as to any events or circumstances in respect of which
the Indemnified Party may have any right or claim against such third party
relating to such indemnified matter. The Indemnified Party shall cooperate with
the Indemnity Obligor in prosecuting any subrogated claim. The Indemnity Obligor
will take no action in connection with any claim that would adversely affect the
Indemnified Party without the consent of the Indemnified Party.
(d) Duration of the Company's Obligations. The Indemnity Obligor's
indemnification obligations under this Agreement shall survive the termination
of this Agreement.
5. Acknowledgments and Representations.
(a) The Company recognizes and confirms that in performing its duties
pursuant to this Agreement, XXXXXXXX-XXXX.XXX will be using and relying upon
data, material and other information furnished by the Company, its employees and
representatives (the "Information"). The Company hereby agrees and represents
that all Information furnished to XXXXXXXX-XXXX.XXX in connection with this
Agreement shall be accurate and complete in all material respects at the time
furnished, and that if such Information, in whole or part, becomes materially
inaccurate, misleading or incomplete during the term of XXXXXXXX-XXXX.XXX's
engagement hereunder, the Company shall so advise XXXXXXXX-XXXX.XXX in writing
and correct any such inaccuracy or omission. INVESTORGATE. COM assumes no
responsibility for the accuracy and completeness of such Information. In
rendering its services hereunder, XXXXXXXX-XXXX.XXX shall be entitled to use and
rely upon the
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Information without independent verification thereof. To the extent consistent
with legal requirements, all Information, unless publicly available or otherwise
available to XXXXXXXX-XXXX.XXX without restriction or breach of any
confidentiality agreement, will be held by XXXXXXXX-XXXX.XXX in confidence and
will not be disclosed to anyone other than XXXXXXXX-XXXX.XXX's agents and
advisors without the Company's prior written approval or used for any purpose
other than those referred to in this Agreement.
(b) The Company understands and agrees that in furnishing the Company with
advice and other services as provided in this Agreement, neither
XXXXXXXX-XXXX.XXX nor any officer, director or agent thereof shall be liable to
the Company, its affiliates or its creditors for errors of judgment or anything
except bad faith or gross negligence in the performance of its duties under the
terms of this Agreement.
(c) The Company acknowledges that XXXXXXXX-XXXX.XXX has been retained
solely as an advisor to the Company, and not as an advisor to or agent of any
other person, and that the Company's engagement of XXXXXXXX-XXXX.XXX is not
intended to confer rights upon any persons not a party hereto (including
shareholders, employees or creditors of the Company) as against
XXXXXXXX-XXXX.XXX, XXXXXXXX-XXXX.XXX' affiliates or their respective directors,
officers, agents and employees.
(d) The Company represents and warrants to XXXXXXXX-XXXX.XXX that it will
not cause, or knowingly permit (a) any action to be taken which violates or (b)
a failure to act, the effect of which violates, any federal or state securities
law.
6. Notices. All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be delivered by hand or fax or
mailed by overnight courier or first class certified or registered mail, return
receipt requested, postage prepaid and properly addressed as follows:
If to XXXXXXXX-XXXX.XXX to: XXXXXXXX-XXXX.XXX
Attention: Xxxxx Xxxxx-President
00000 Xxxxxx Xxxx #000, Xxxxxxxxxx XX 00000
E-Mail : Xxxxxx00@xxxxxxxxx.xxx
If to the Company, to: Nutra Pharma Corporation
Attention: Xxx X. Xxxxxxx - CEO
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
E-Mail : xxx@xxxxxxxxxxx.xxx
Any party may change its address for purposes of this provision by giving
the other party written notice of the new address in the manner set forth above.
Notice will be conclusively deemed to have been given when personally delivered,
or if given by mail, on the second day after being sent by overnight courier or
on the third day after being sent by first class, registered or certified mail,
or if given by fax, when confirmation of transmission is indicated by the
sender's fax machine.
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7. Arbitration. All controversies, disputes or claims arising out of or
relating to this Agreement shall be resolved by binding arbitration. The
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. All arbitrators shall possess
such experience in, and knowledge of, the subject area of the controversy or
claim so as to qualify as an "expert" with respect to such subject matter. The
governing law for the purposes of any arbitration arising hereunder shall be as
set forth in Section 11 hereof. The prevailing party shall be entitled to
receive its reasonable attorney's fees and all costs relating to the
arbitration. Any award rendered by arbitration shall be final and binding on the
parties, and judgment thereon may be entered in any court of competent
jurisdiction.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of California, without regard to the
conflicts of laws provisions thereof, and may not be amended or modified except
in writing signed by both parties.
9. Successors. This Agreement and all rights and obligations thereunder
shall be binding upon and inure to the benefit of each party's successors, but
may not be assigned without the prior written consent of the other party, which
shall not be unreasonably withheld or delayed.
10. Severability. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed severable.
11. Authorization. The Company represents and warrants that it has all
requisite power and authority, and has received all necessary authorizations, to
enter into and carry out the terms and provisions of this Agreement.
Please confirm that the foregoing correctly sets forth our Agreement by
signing the enclosed letter in the space provided and returning them to us for
execution, whereupon we will send you a fully executed original letter which
shall constitute a binding Agreement as of the date first above written. We look
forward to working with you on this assignment.
Very truly yours,
XXXXXXXX-XXXX.XXX
By: /s/ XXXXX XXXXX
Xxxxx X. Xxxxx
President and CEO
Agreed to and Accepted as of the date above.
Nutra Pharma Corporation
By: /s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx
CEO
Nutra Pharma Corporation
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