Exhibit 10.8
April 12, 2002
Xxxxxxxx XxXxxx, Chief Executive Officer
NutraStar Technologies Incorporated
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Re: Strategic Alliance
Dear Xxxxx:
This will finalize our recent discussions and will memorialize the terms and
conditions of the strategic alliance between NutraStar Technologies
Incorporated (NSI), and world Nutriceuticals, Inc. (WNI) (this "Agreement")
1. Marketing. WNI will introduce NSI to contacts known by WNI to be potential
customers for the products developed, or sold, by NSI. These potential
customers will be individuals or entities engaged either directly or
indirectly in the nutrition industry (hereafter "Contacts")
2 Method Of Identification. Upon the determnation by WNI that a contact is a
potential suitable customer for the products of NSI's subsidiaries (the
"products") WNI will notify NSI by way of an Introduction letter, detailing
the Contact's name and contact person. NSI shall have 10 Business days to
notify WNI whether the identified Contact is either an existing customer of
NSI or one of NSI's subsidaries a customer with NSI has already engaged in
discussions regarding the distribution of the Products, or a one of the
companies listed on Attachment A to this letter (collectively the "Excluded
Customers"). Unless NSI, in accordance with this paragraph notifies WNI
that the referred Contact is an Excluded Customer, all sales from NSI to
the Contact shall be subject to the terms of paragraph 3 hereinafter, and
the specified commission and reimbursement provisions thereof shall apply.
3. Fees and Commissions. Following the Introduction Letter, NSI may either
directly or indirectly, through WNI, present its products to the Contact.
Upon any sale of Products to the Contact or affiliates of the Contact
within 12 months of the Introduction Letter relating to the Contact, WNI
will be paid a commission of ten percent (10%) of the Gross Receipts (as
defined herein). All commissions are payable 30 days after the receipt of
payment by NSI from the Contact. Should WNI, at the request of NSI, make
the Product presentation to the Contact, all pre-approved reasonable and
necessary fees and expenses incurred by WNI for such presentation shall
promptly be reimbursed by NSI to WNI. These commissions shall be owing to
WNI for so
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long as the Contact, directly or indirectly purchases product from NSI;
provided, that such commissions shall cease in the event that the Contact
fails to purchase any Products within any consecutive 12 month period.
"Gross Receipts" shall mean the total cash receipts received by NSI from
the sale of the Products to the Contact, less (i) freight charges and other
similar costs, (ii) refunds for merchandise returned which were previously
included in Gross Receipts, (iii) allowances or adjustments granted to the
Contact to the extent that these were previously included in Gross
Receipts, (iv) transfers of merchandise from warehouse to warehouse
provided that such transfer was not for the purpose of delivery of Products
sold or Products returned to the Contact, and (v) sales, use, gross
receipts, excise and like taxes which are added to the selling price of
merchandise at the point of sale and paid for by the Contact.
4. Applicable Law. This Agreement shall be construed in accordance with and
pursuant to the laws of the State of California.
5. Successors and Assigns. This Agreement shall be binding on and inure to the
benefit of the respective parties hereto and their executors,
administrators, heirs, personal representatives, successors and assigns.
6. Attorney Fees. If any legal proceeding is commenced to enforce any of the
provisions of this Agreement, to recover damages for breach of any of the
provisions of this Agreement, or to obtain declaratory, injunctive or
specific relief in connection with any of the provisions of this Agreement,
the prevailing party in such action shall be entitle to recover reasonable
attorney fees and costs and other costs of such proceeding.
7. Reformation/Severability. If any provision of this Agreement is found
unenforceable, the remainder shall be enforced as fully as possible and the
unenforceable provision shall be modified to the limited extent required to
permit its enforcement in a manner most closely representing the intention
of the parties as expressed herein.
8. Entire Agreement. This written Agreement contains the sole and entire
agreement between the parties pertaining to the subject matter hereof and
will supersede any and all other statements or agreements, whether oral or
written, between the parties relating to the subject matter hereof.
9. Equity Incentive. NSI shall grant WNI five year stock options to purchase
up to 150,000 shares of NSI's common stock at $0.75 per share based on the
following vesting schedule: (i) 50,000 shares upon NSI recognizing
$1,000,000 in Gross Receipts before January 1, 2003, (ii) 50,000 shares
upon NSI recognizing a cumulative amount of $5,000,000 in Gross Receipts
before January 1, 2004 and (iii) 50,000 shares upon NSI recognizing a
cumulative amount of $20,000 000 in Gross Receipts before January 1, 2006.
10. Term. The term of this Agreement shall be for a period of two (2) years and
shall be renewed automatically for successive terms of one (1) year
thereafter,
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unless terminated by one of the parties upon providing sixty days prior
notice to the other party, subject to the terms as set forth herein. In the
event any Contact for which WNI is entitled to commissions under paragraph
3 hereof purchase Products during the initial 12 month period from the date
of the Introduction Letter relating to the Contact, then WNI shall have an
exclusive representation agreement with NSI for the Contact for as long as
the Contact purchases Products in any 12-month consecutive period,
regardless of whether this Agreement has been terminated.
11. Duties of WNI. WNI will (i) at all times use its best efforts, abilities
and facilities and devote such time and effort as maybe necessary or
desireable to promote, solicit orders for, and develop the market for, the
Products, and (ii) solicit orders from Contacts at prices and under terms
and conditions set forth by NSI.
World Nutriceuticals, Inc.
/s/
----------------------------- Dated: 4/22/02
NutraStar Technologies Incorporated
/s/
----------------------------- Dated: April 12, 2002
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