EXHIBIT 99.4
June 1, 2005
Nutra Pharma Corp.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx X. Xxxxxxx
Dear Sirs:
In connection with our engagement to advise and assist you with the
matters set forth in the engagement letter of even date herewith, you and we are
entering into this letter agreement. It is understood and agreed that in the
event that Xxxxxxx & Company LLC ("Xxxxxxx") or any of our members, employees,
agents, affiliates or controlling persons, if any (each of the foregoing,
including Xxxxxxx, being an "Indemnified Person") become involved in any
capacity in any action, claim, proceeding or investigation brought or threatened
by or against any person, including your stockholders, related to, arising out
of or in connection with our engagement, you will promptly reimburse each such
Indemnified Person for its legal and other expenses (including the cost of any
investigation and preparation) as and when they are incurred in connection
therewith. You will indemnify and hold harmless each Indemnified Person from and
against any losses, claims, damages, liabilities or expense to which any
Indemnified Person may become subject under any applicable federal or state law,
or otherwise, related to, arising out of or in connection with our engagement,
whether or not any pending or threatened action, claim, proceeding or
investigation giving rise to such losses, claims, damages, liabilities or
expense is initiated or brought by or on your behalf and whether or not in
connection with any action, proceeding or investigation in which you or such
Indemnified Persons are a party, except to the extent that any such loss, claim,
damage, liability or expense is found by a court of competent jurisdiction in a
judgment which has become final in that it is no longer subject to appeal or
review to have resulted primarily from such Indemnified Person's bad faith or
gross negligence. You also agree that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to you
or your security holders or creditors related to, arising out of or in
connection with our engagement except to the extent that any loss, claim, damage
or liability is found by a court of competent jurisdiction in a judgment which
has become final in that it is no longer subject to appeal or review to have
resulted primarily from such Indemnified Person's bad faith or gross negligence.
If multiple claims are brought
against us in an arbitration related to, arising out of or in connection with
our engagement, with respect to at least one of which such claims
indemnification is permitted under applicable law, you agree that any
arbitration award shall be conclusively deemed to be based on claims as to which
indemnification is permitted and provided for hereunder, except to the extent
the arbitration award expressly states that the award, or any portion thereof,
is based solely on a claim as to which indemnification is not available.
If for any reason the foregoing indemnification is held unenforceable,
then you shall contribute to the loss, claim, damage, liability or expense for
which such indemnification is held unenforceable in such proportion as is
appropriate to reflect the relative benefits received, or sought to be received,
by you and your stockholders on the one hand and the party entitled to
contribution on the other hand in the matters contemplated by our engagement as
well as the relative fault of yourselves and such party with respect to such
loss, claim, damage, liability or expense and any other relevant equitable
considerations. You agree that for the purposes hereof the relative benefits
received, or sought to be received, by you and your stockholders and ourselves
shall be deemed to be in the same proportion as (i) the total value paid or
proposed to be paid or received by you or your stockholders, as the case may be,
pursuant to the transaction (whether or not consummated) for which we have been
engaged to perform investment banking services bears to (ii) the fees paid or
proposed to be paid to us in connection with such engagement; provided, however,
that, to the extent permitted by applicable law, in no event shall we or any
other Indemnified Person be required to contribute an aggregate amount in excess
of the aggregate fees actually paid to us for such investment banking services.
Your reimbursement, indemnity and contribution obligations under this letter
shall be in addition to any liability which you may otherwise have, shall not be
limited by any rights we or any other Indemnified Person may otherwise have and
shall be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of yourselves, ourselves, and any other Indemnified
Persons.
You agree that, without our prior written consent (which will not be
unreasonably withheld), you will not settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action, or proceeding or
investigation in respect of which indemnification or contribution could be
sought hereunder (whether or not we or any other Indemnified Persons are an
actual or potential party to such claim, action or proceeding or investigation),
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Person from all liability arising out of such claim, action
or proceeding or investigation. No waiver, amendment or other modification of
this agreement shall be effective unless in writing and signed by each party to
be bound thereby. This agreement and any claim related directly or indirectly to
this agreement (including any claim concerning advice provided pursuant to this
agreement) shall be governed and construed in accordance with the laws of the
State of California (without giving regard to the conflicts of law provisions
thereof). No such claim shall be commenced, prosecuted or continued in any forum
other than the courts of the State of California located in the City and County
of Los Angeles or in the United States District Court for the Central District
of California, and each of us hereby submits
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to the jurisdiction of such courts. You hereby waive on behalf of yourself and
your successors and assigns any and all right to argue that the choice of forum
provision is or has become unreasonable in any legal proceeding. We and you (on
your own behalf and, to the extent permitted by applicable law, on behalf of
your stockholders and creditors) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
related to or arising out of or in connection with our engagement. This
agreement shall remain in effect indefinitely, notwithstanding any termination
or expiration of our engagement.
Very truly yours,
XXXXXXX & COMPANY LLC
By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
AGREED TO AND ACCEPTED
as of the date
first above written:
NUTRA PHARMA CORP.
By /s/ Xxx X Xxxxxxx
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Xxx X Xxxxxxx
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