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Exhibit 10.3
AGREEMENT
This AGREEMENT entered into this 31st day of October, 1995 by and between
NutraGenics, Inc. a Nevada corporation, having its principle offices at 0000 X.
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as
"NutraGenics") and C. Xxxxxxx Xxxx, M.D., residing at 0000 Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Koop").
W I T N E S S E T H:
WHEREAS, NutraGenics is a public company in the business of manufacturing,
marketing and selling a product called "Vitenol-E(TM), a vitamin E-like complex
that has been shown to be effective in reducing critical events associated with
coronary heart disease and stroke;
WHEREAS, Koop is a medical physician who has been in the scientific,
medical and health profession for 30 years, including appointment to the
position of Surgeon General for the United States, as well as other scientific,
medical and health related advisory positions;
WHEREAS, Koop is simultaneously with the execution of this Agreement,
purchasing Twenty Thousand (20,000) shares of unregistered common stock of
NutraGenics $.001 par value at a price of $1.00 per share (hereinafter referred
to as the "Stock") for investment purposes only pursuant to a separate
Investment Letter dated the date hereof; and
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WHEREAS, upon execution of this Agreement, Koop will be elected by the
Board of Directors of NutraGenics as a member of the Board of Directors of
NutraGenics for the purpose of guiding, counseling and assisting in the growth
and development of NutraGenics;
NOW THEREFORE, in consideration of the mutual covenants and provisions
herein contained, the parties intending to be legally bound, agree as follows:
FIRST: ELECTION OF KOOP AS A MEMBER OF THE
BOARD OF DIRECTORS OF NUTRAGENICS
(a) If elected, Koop agrees to serve as a member of the Board of Directors
of NutraGenics for three (3) consecutive one (1) year terms commencing October
31, 1995.
(b) As a member of the Board of Directors of NutraGenics, Koop hereby
agrees to hold himself reasonably available (taking into consideration Koop's
other commitments and responsibilities) to help guide, counsel and assist in the
growth and development of NutraGenics.
(c) In the event that Koop is not elected as a member of the Board of
Directors of NutraGenics, Koop, nevertheless, agrees to hold himself reasonably
available (taking into consideration Koop's other commitments and
responsibilities) to help guide, counsel and assist in the growth and
development of NutraGenics for a period of three (3) years commencing with the
date hereof.
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SECOND: EXPENSES
NutraGenics will reimburse Koop for expenses incurred by him during the
course of services for NutraGenics hereunder including travel, lodging and
meals, provided the same have been authorized by NutraGenics and that an
accounting is made to NutraGenics.
THIRD: EXTENT OF SERVICES
(a) It is understood by the parties to this Agreement that Koop is an
independent contractor, and no rights of agency are conferred by NutraGenics
upon Koop. Koop does not have, nor shall he hold himself out as having, any
right, power, or authority to create any contract or obligation, either express
or implied, on behalf of, in the name of or binding upon NutraGenics.
(b) It is acknowledged that Koop's services shall be non-exclusive. It is
further acknowledged that during the term of this Agreement Koop will be privy
to information proprietary to NutraGenics and Koop shall maintain such
proprietary information as confidential and for the benefit of NutraGenics,
provided, that the foregoing shall not apply to any information which (i) at the
time of the disclosure thereof by Koop, was generally available to the public
other than as a result of disclosure, directly or indirectly, by Koop or was
available to Koop on a nonconfidential basis prior to its disclosure to Koop by
NutraGenics from a source which was not itself bound by a confidentiality
agreement with NutraGenics or (ii) Koop is obligated to disclose by law.
(c) NutraGenics shall carry no Workmen's Compensation
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insurance or any health or accident insurance for Koop. NutraGenics shall not
pay any contributions to Social Security, unemployment insurance, federal or
state withholding taxes, nor provide any other contributions or benefits which
might be expected in an employer-employee relationship.
FOURTH: OPTION TO PURCHASE NUTRAGENICS COMMON STOCK
(a) NutraGenics does, simultaneously with the execution of this
Agreement, xxxxx Xxxx the option (the "Option") to purchase One Hundred and
Eighty Thousand (180,000) shares of the Stock (the "Option Shares") at a price
of One Dollar and Fifty Cents ($1.50) per share (hereinafter referred to as the
"Exercise Price") for a period of three (3) years commencing with the date
hereof (the "Option Period"). The Exercise Price and the number and type of
securities subject to the Option are subject to adjustment as provided in
paragraph (b) of this Article FOURTH.
(b) In the event that, during the period between the date hereof and
the Closing Date (as hereinafter defined), any reclassification, reorganization,
stock split, stock dividend, merger, consolidation, combination, exchange of
securities, or other similar change in respect of the capitalization of
NutraGenics shall occur, then appropriate adjustment shall be made in the number
of Option Shares and/or kind of securities to be issued as Option Shares and the
Exercise Price so that the Option Shares shall be that number of shares of
common stock and/or other securities that Koop would have held after such
reclassification,
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reorganization, stock split, stock dividend, merger, consolidation, combination,
exchange of securities, or other similar change if the Closing Date had occurred
immediately prior to such reclassification, reorganization, stock split, stock
dividend, or other change and all references herein to the Option Shares shall
be deemed to refer to such adjusted number and/or kind of securities.
(c) In the event that, during the period between the date hereof and
the Closing Date, there is a partial or complete liquidation or spin-off of any
assets owned by NutraGenics, NutraGenics will give Koop thirty (30) days prior
written notice of such event so that Koop may exercise any part or all of his
Option prior to such liquidation or spin-off.
(d) At any time during the Option Period, Koop shall have the right to
purchase from NutraGenics, in round numbered size allotments of blocks of at
least Ten Thousand (10,000) shares, up to that number of Option Shares then
subject to the Option, at the Exercise Price in effect at the time of such
exercise. Koop shall notify Nutragenics in writing by certified or registered
mail of his intention to exercise the Option. The closing and the issuance to
Koop of the unregistered common stock of NutraGenics (the "Closing Date") shall
be held within thirty (30) days of Koop's notice to exercise the Option. Koop
shall sign an investment
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letter for all stock issued pursuant to the Option in form and substance as
annexed hereto.
(e) In the event of the demise of Koop at any time during the option
period, Koop's estate shall have the right to exercise the Option for a period
which is the lesser of one year or the balance of the Option Period.
FIFTH: REPRESENTATIONS AND WARRANTIES
OF NUTRAGENICS
NutraGenics represents and warrants to Koop as follows:
(a) NutraGenics will cooperate fully and timely with Koop to enable
Koop to perform his duties as a member of the Board of Directors of NutraGenics
under this Agreement.
(b) The execution and performance of this Agreement by NutraGenics has
been duly authorized by the Board of Directors of NutraGenics through the
adoption and execution of formal executed resolutions of the Board of Directors
of NutraGenics.
(c) The performance by NutraGenics of this Agreement will not violate
any applicable court decree, federal, state or local law, ordinance or
regulation, nor will such performance violate any provision of NutraGenics'
organizational documents or any contractual obligation by which NutraGenics may
be bound.
(d) Any and all information supplied by NutraGenics to Koop shall be
true, accurate, and complete.
(e) NutraGenics is a corporation duly organized, validly existing and
in good standing under the laws of the state of Nevada. The authorized capital
of NutraGenics consists of
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50,000,000 shares of common stock, par value $.001 per share, of which 9,757,862
shares have been issued and are outstanding on the date hereof. NutraGenics
represents and warrants to Koop that (i) it shall at all times during the Option
Period have a number authorized and unissued shares of Stock at least equal to
the number of shares then subject to the Option and (ii) the Stock, when issued
pursuant to the terms and conditions of this Agreement and the Option, will have
been duly authorized, validly issued, fully paid and nonassessable.
(f) NutraGenics shall, to the fullest extent permitted by section
78.751 of the General Corporation Law of the State of Nevada, as that Section
may be amended and supplemented from time to time, indemnify Koop, under that
Section against any expenses, liabilities or other matters referred to in or
covered by that Section . The indemnification provided for in this paragraph (i)
shall not be deemed exclusive of any other rights to which Koop may be entitled
under any bylaw, agreement or vote of stockholders or disinterested directors or
otherwise, both as to action in Koop's official capacity and as to action in
another capacity while holding office as a director of NutraGenics, (ii) shall
continue as to Koop if he has ceased to be a director, officer or trustee, and
(iii) shall inure to the benefit of Koop's heirs, executors and administrators.
Any reasonable expenses incurred by Koop in defending a civil or criminal
action, suit or proceeding brought against him by reason of the fact that he is
or was a director,
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officer, employee, or agent of NutraGenics, or is or was serving at the request
of NutraGenics as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be paid by
NutraGenics as they are incurred and in advance of the final disposition of such
action, suit or proceeding, upon receipt by NutraGenics of an undertaking by or
on behalf of Koop to repay the amount if it is ultimately determined by a court
of competent jurisdiction that he is not entitled to be indemnified by
NutraGenics in respect thereof.
(g) NutraGenics will not use Koop's name or the fact that he is a
director of NutraGenics for the endorsement, marketing or sale of any of
NutraGenics, products.
SIXTH: INDEMNIFICATION AND HOLD HARMLESS
NutraGenics agrees to protect, defend, indemnify and hold Koop harmless
from any and all claims, demands, liabilities, suits, judgments and damages that
may be asserted against Koop for wrongful acts alleged by third parties to have
been committed by NutraGenics or any of its officers, employees, agents,
subsidiaries or affiliates. This agreement to hold Koop harmless from any such
claims shall include the immediate reimbursement of all reasonable costs and
expenses incurred by Koop in defending any such claims, including the payment of
reasonable attorney's fees of an attorney selected by Koop and NutraGenics and
the payment of any settlement or judgment that may arise from such claims.
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SEVENTH: ENDORSEMENT OF STOCK CERTIFICATE
Koop agrees that there will be placed on the certificates of any
unregistered common stock of NutraGenics purchased by Koop pursuant to this
Agreement or the Option, a legend stating in substance as follows:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, have been acquired for
investment and may not be sold transferred or assigned in the absence
of an effective registration statement for these shares under the
Securities Act of 1933 or the availability of an exemption from such
registration requirement.
EIGHTH: NOTICES
Any notice to be given under this Agreement shall be sufficient if it
is in writing and is sent by certified or registered mail to the addresses
specified as follows:
NutraGenics, Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxx
Chief Executive Officer
C. Xxxxxxx Xxxx, M.D.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
or as otherwise directed by NutraGenics or Koop from time to time.
NINTH: WAIVER
The waiver by NutraGenics or Koop of compliance with any provisions of
this Agreement shall not operate or be construed as a waiver of due performance
or compliance by Koop or NutraGenics thereafter.
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TENTH: ASSIGNMENT
The rights and obligations of NutraGenics under this Agreement shall
inure to the benefit of, and shall be binding upon, the successors and assigns
of NutraGenics, however, Koop cannot assign his personal obligations pursuant to
Article FIRST and THIRD. The rights of Koop under the Option and pursuant to
Article FIFTH (f) and Article SIXTH shall inure to the benefit of Koop's heirs,
administrators, executors and devisees.
ELEVENTH: ENTIRE AGREEMENT: MODIFICATION
This Agreement contains all of the terms and conditions agreed upon by
the parties hereto with reference to the subject matter hereof. No other
agreements, oral or otherwise, shall be deemed to exist or to bind any of the
parties hereto, and all prior agreements and understandings are superseded
hereby. This Agreement cannot be modified or changed except by written
instrument signed by all of the parties hereto.
TWELFTH: LAWS TO GOVERN
This Agreement shall be deemed to have been made in the State of New
York, therefore, the interpretation validity and performance of this Agreement
shall be construed and enforced the accordance with the laws of the state of New
York and the parties consent to the exclusive jurisdiction of the state and
federal courts of the State of New York.
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THIRTEEN: ARBITRATION
Any and all disputes of whatsoever kind or nature arising out of or
concerning this Agreement, its interpretation or effect, shall be determined by
the exclusive means of arbitration in the City of New York before the American
Arbitration Association of the City of New York, in accordance with its rules
and regulations then in effect, and the decision upon such arbitration shall be
final and binding upon all of the parties to this Agreement. The cost and
expenses of arbitration, including the reasonable attorney's fees, and
disbursements of the successful party, shall be paid by the party against whom
the arbiters render a decision, unless the decision of the arbiters specifically
provides otherwise for good cause, and judgment upon such award may be entered
in the Supreme Court of the State of New York or any other state in which any
party to this Contract is a resident. Such determination shall be made by a
panel of at least three (3) arbitrators. The parties agree that prior to the
arbitration hearing each shall have the right, within thirty (30) days after the
selection of the arbitrators, to take the depositions of the officers, agents
and employees of the other party, provided all costs incident to any such
depositions shall be paid by the party requesting such depositions. Either party
within said period may request production of relevant documents from the other
parties and upon receipt of such request the party required to supply such
documents shall do so immediately and within ten (10) days of such request.
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All discovery disputes shall be resolved by the American Arbitration
Association, and all discovery shall be completed within ninety (90) days unless
otherwise extended by agreement or order of the arbitrators. All costs and
expenses, including travel expenses, incident to any discovery requested by a
party shall be paid for by the requesting party; provided, however, that the
arbitrators may assess said costs against. one or the other party following a
hearing of the dispute. The arbitrators may assess interest on any amount
awarded. In all other respects, the arbitration shall proceed under the rules
and regulations then obtaining of the American Arbitration Association.
FOURTEEN: SEVERABILITY
Nothing contained in this Agreement shall be construed as requiring the
commission of any act contrary to law. In the event that any part, article,
paragraph or clause of this Agreement shall be held to be indefinite, invalid or
otherwise unenforceable, the entire Agreement shall not fail on account thereof,
and the balance of this Agreement shall continue in full force and effect. If
any tribunal or court or appropriate jurisdiction deems any provision hereof
(other than for the payment of money) unreasonable, said tribunal or court may
declare a reasonable modification hereof, and this Agreement shall be valid and
enforceable, and the parties hereto agree to be bound by and perform the same,
as thus modified.
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FIFTEEN: HEADINGS
The headings of the paragraphs of this Agreement are for the
convenience of reference only and do not form a part thereof and in no way
modify, interpret or construe the meanings or the parties.
SIXTEEN: COUNTERPARTS
This Agreement may be signed upon any number of counterparts with the
same effect as if the signature to each were upon the same agreement. Signatures
by facsimile transmission shall be deemed acceptable and binding on the parties
hereto.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
(seal) NUTRAGENICS, INC.
By:/s/Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Chairman and
Chief Executive Officer
/s/ C. Xxxxxxx Xxxx
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C. Xxxxxxx Xxxx, M.D.
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