U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 3 TO CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 22, 2002
COMMISSION FILE NUMBER: 000-32141
Nutra Pharma Corp.
(Exact name of registrant as specified in its charter)
California 91-2021600
- ----------------------------------------- -------------------------
(State or jurisdiction of incorporation (I.R.S. Employer I.D. No.)
or organization
485 Martin Lane, Beverly Hills, California 90210
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number: (310) 858-7088
---------------------------------------------------------
(Former name or former address, if changed since last report)
Item 1. Change In Control of Registrant
Not Applicable
Item 2. Acquisition or Disposition of Assets
TRANSACTION
On August 22, 2002, Nutra Pharma Corp ("Nutra Pharma") consummated the
first portion of its acquisition agreement with of Bio Therapeutics, Inc., a
Florida corporation ("Bio Therapeutics"), provided for in the Definitive
Agreement dated May 30, 2002 and the Closing Agreement for the Exchange of
Common Stock dated August 12, 2002, as amended. Pursuant to the Agreement, Bio
Therapeutics is being acquired by Nutra Pharma and will become a wholly owned
subsidiary of Nutra Pharma, upon the completion of Nutra Pharma's
privateplacement of a minimum of $1.5 million of its common stock. If Nutra
Pharma fails to raise the minimum of $1.5 million in the private placement, the
Agreement shall become null and void. In connection with the transaction, Nutra
Pharma is issuing approximately 11,730,889 shares of its Common Stock, $.001
par value ("Common Stock"), to all holders of Bio Therapeutics common stock in
exchange for 11,730,889 shares of Bio Therapeutics common stock, subject to
adjustment and the issuance of additional shares to Bio Therapeutics
shareholders if, on the date of final closing of the Agreement, the common
stock of Nutra Pharma is not trading at the best offer price of $1.20 per
share. Shares of Nutra Pharma and Bio Therapeutics have been issued and are
being held in escrow to secure both parties' obligations under the Agreement.
The description of the Acquisition Agreement set forth herein is qualified in
its entirety by reference to the copy of the Definitive Agreement dated May 30,
2002, the Amendment to Closing Agreement for the Exchange of Common Stock dated
August 12, 2002, and the Amendment to Closing Agreement for the Exchange of
Common Stock, dated September 27, 2002, which are filed as exhibits to this
Report and which are incorporated herein by reference.
If the private placement is successful and the Exchange Agreement proceeds to a
closing, the business of Nutra Pharma will consist of the following:
Business in General
Nutra Pharma is in the process of a developing a series of wound care products
under the name WD-669, and it is anticipated that these products will use one
or more of the patented delivery systems developed by Bio Therapeutics, Inc.
With the addition of Bio Therapeutics, Nutra Pharma will be a developmental
stage biopharmaceutical company which develops drugs for multiple sclerosis, or
MS, cancer, HIV and neuromuscular disorders. The Company has also developed a
number of unique patented drug delivery platforms for topical and needle free
delivery of these unique drugs. Its lead drug candidate, Alpha-Immunokine, is a
novel modified protein which has been studied as a treatment for several
clinical disorders.
Nutra Pharma's drug is the first of a new class of therapeutics. It may offer
superior (or complementary) efficacy and much greater tolerability than current
MS treatments, and it may prove beneficial to a broad range of MS, irrespective
of disease severity. The Immunokine has been approved for formal controlled
clinical trials in MS. Alpha-Immunokine-NNS, is derived from a small protein
called alpha-cobratoxin. Native alpha-cobratoxin is a potent poison extracted
from cobra venom. A specific chemical process modifies the cobra toxin,
eliminating its deadly effect. The Immunokine retains some of the affinities of
the native toxin, but to a much diminished degree -- likely a key factor in the
agent's purported therapeutic effects.
Forward Looking Statements
This report contains forward-looking statements. Nutra Pharma
Corp.'sexpectation of results and other forward-looking statements contained in
this registration statement involve a number of risks and uncertainties. Among
the factors that could cause actual results to differ materially from those
expected are the following: business conditions and general economic
conditions; competitive factors, such as pricing and marketing efforts; and the
pace and success of product research and development. These and other factors
may cause expectations to differ.
Business Overview
Multiple Sclerosis is a rather mysterious illness of unknown cause and highly
variable clinical course. It is believed to be an autoimmune disease in which
the body's system damages primarily the central nervous system. MS destroys the
insulating fatty material surrounding the nerve fibers, known as myelin. Myelin
functions to speed signals from one end of the nerve cell to the other (much
like the insulation on electrical wiring). Myelin is attacked by cells of the
immune system thereby impairing nerve signal transfer -- a destructive process
termed demyelination. Demyelinated nerve cells are also at risk of irreversible
damage.
People with MS may experience diverse signs and symptoms. MS symptoms may
include pain, fatigue, cognitive impairment, tremors, loss of coordination and
muscle control, loss of touch sensation, slurred speech and vision impairment.
The course of the disease is unpredictable. For most MS patients, the disease
initially manifests a 'relapsing-remitting' pattern. Periods of apparent
stability are punctuated by acute exacerbations -- sudden unpredictable
episodes that might involve impaired vision, diminished ability to control a
limb, loss of bladder control, or a great variety of other possible neurologic
deficits. In relapsing-remitting MS, some or all of the lost function returns.
However, the patient sustains an unceasing, often insidious, accumulation of
neuronal damage. As the burden of neural damage grows, new lesions are more
likely to produce irreversible impairment of function. Typically, about eight
to fifteen years after onset, MS patients enter the secondary-progressive
phase.
Eventually, progressive MS sufferers become wheel chair bound, may become blind
and even incapable of speech. There is currently no licensed drug that reverses
the course of the progressive form of MS.
Nutra Pharma's lead drug candidate, Alpha-Immunokine-NNS, is derived from a
small protein called alpha-cobratoxin. Native alpha-cobratoxin is a potent
poison extracted from cobra venom.
A specific chemical process modifies the cobra toxin, eliminating its deadly
effect. The Immunokine retains some of the affinities of the native toxin, but
to a much diminished degree -- likely a key factor in the agent's purported
therapeutic effects.
Business Strategy
The Company will continue its synthesis of new peptide drug candidates
(collectively referred to as Immunokines), and will begin its first recombinant
production of these peptides for human and veterinary applications. The Company
will focus on the registration of these first products for use in veterinary
medicine. The Company believes this approach will provide early revenues while
the Company completes the final recombinant peptides to be used in human trials
for the treatment of Multiple Sclerosis.
Product & Service Offerings
Various formulations of interferon-beta and copaxone therapies for multiple
sclerosis have brought hope to many thousands of patients. Yet, adoption of
these drugs have been hindered by limited efficacy, side effects, inconvenience
and price.
Nutra Pharma's Alpha-Immunokine, a novel modified protein, has been studied as
a treatment for several clinical disorders.
In the U.S. many patients with relapsing forms of MS are not receiving approved
'disease-modifying' therapies. In most other countries, where MS is prevalent,
including Western Europe and Canada, penetration of that segment of the MS
population remains modest. And worldwide, only a handful of patients with
progressive forms of the disease are on an approved disease-modifying therapy.
Nevertheless, sales of the beta-interferons and copaxone for MS surpassed $900
million in 1998, and may approach $1.3 billion this year.
A new formulation of the modified protein may also prove effective when
administered orally. Nutra Pharma has recently developed a new spray "puffer"
that permits efficient delivery of the agent through the oral mucosa. Patent
applications have been filed. Oral delivery may provide MS patients with an
additional "quality of life" benefit by eliminating or decreasing the
requirement for routine injections.
Nutra Pharma researchers believe that Immunokine may also slow the underlying
progression of MS. They have found that development of new neurological
impairment seems infrequent and the severity of acute exacerbations may be
blunted. However, the small number and diversity of patients in the initial
trials, the variability of MS, and the open-label 'uncontrolled' format of the
pilot studies, complicate that assessment. It should be noted, however, that
alpha-cobratoxin, chemically modified in a somewhat different manner than that
employed by Nutra Pharma, has been shown to inhibit the development of EAE --
an animal model of MS.
Product Development
The Company has completed a number of critical milestones. New drug development
requires the coming together of a variety of seemingly unrelated development
programs. Early in the development process, the initial drug candidates must
show some promise or they will be abandoned. Assuming a drug candidate does
show promise, the drug must be optimized and a variety of manufacturing
processes must be evaluated. It is often during this stage that critical
intellectual property is defined and patents are filed and defended.
For the Immunokine drug(s) it was necessary to design, build and
validateequipment that would be used in the manufacturing process. Since such
equipment did not exist, the task was a critical part of the feasibility
assessment. The final drug could not be tested until this process was complete
and validated.
Another significant milestone was the development of one or more proprietary
drug delivery platforms. The Company first patented a method of topical skin
delivery (Patent issued) now known as MET technology which enabled the delivery
of the Immunokine(s) in a cream or ointment. The most recent milestone
addressed the completion and filing of a patent allowing the Immunokine drug to
be delivered as a buccal spray, for those applications where injections using
needles were impractical. The Company has successfully used the same drug
formulation for all three delivery formats which now allow the final drug to be
validated in animal and human clinical trials. These trials will continue for
2-3 years and will result in the approval of the drug for human use in the
U.S., Canada and Europe. The Company's critical patents have been issued or are
now pending.
These developmental milestones have allowed the Company to develop, test and
choose what it believe to be the best processes and formulations for the
Immunokine drug(s) which represent a new class of powerful therapeutics which
have few adverse side affects. Years of preliminary testing in animal and human
clinical trials would suggest that the Company is ready for final trials which
are now expected to begin in 2003.
Additional Studies
Clinical investigations of the Immunokine have been conducted in a variety of
other neurologic, viral, and cancer-related disorders. There have been no
significant safety issues with the Immunokine; tolerability is excellent.
For example, the agent has been investigated in clinical studies conducted at
the University of Santiago in Chile. Studies involving patients evaluated the
Immunokine as a treatment for advanced prostate cancer and in the management of
herpes-virus infections -- particularly recurrent varicella zoster (Shingles).
The investigators noted significant symptomatic improvements (relief of fatigue
and pain). They also believe that the drug exhibited antiviral and possibly
antitumor activity. Those accounts support the great safety and tolerability of
the drug, and are consistent with reports from the Ministry of Health's trials.
Veterinary studies complement the human clinical experience, providing
additional data.
For example, favorable results have been reported by treating various animals
for Feline Leukemia, FIV (a feline virus analogous to HIV), canine
malignancies, and a variety of other prevalent animal diseases and disorders.
Without the drug, most of these veterinary patients would have been candidates
for euthanasia.
Technology Overview
Nutra Pharma has two primary technology platforms from which it develops
multiple products. The first of these platforms involves a proprietary and
patented method for altering the three-dimensional structure of certain
proteins and peptides found in nature. The result is that the desirable
receptor-binding characteristics of these proteins are preserved and enhanced
while the negative properties are either muted or eliminated. The binding of
specialized signaling proteins and peptides to cell surface receptors is an
important part in the pathogenesis and progression of many different diseases.
Nutra Pharma believes that if modified peptides which do not activate the
normal biochemical pathways necessary for disease progression can instead be
made to bind with these key receptor sites, they could be powerful therapeutic
agents. In addition, it is possible that properly designed high-affinity
peptides, once bound to the appropriate receptor sites, could temporarily
restore normal function to diseased tissue or exert a beneficial
immunomodulatory effect.
Nutra Pharma has recently received allowance of a very broad patent from the
United States Patent Office covering its proprietary method of peptide
modification. Aside from protecting its own drugs, this patent could prove to
be a source of significant royalty income to the Company in the future. Any
pharmaceutical companies that might develop new drugs using this method would
now have to pay royalties to Nutra Pharma. In addition, the Company has filed a
"composition of matter" patent application on its lead product candidate.
The Company's second major technology platform is an innovative aerosolized
drug delivery system. Many therapeutic agents cannot be effectively delivered
by aerosol formulation due to their large size and/or irregular shapes. Since
they cannot be ingested orally without being degraded by the digestive system,
patients have no alternative but to inject these drugs directly. To address
this problem, Nutra Pharma has developed a proprietary aerosol formulation
(patent pending) which greatly enhances the permeability of the mucous
membranes found on the roof of the mouth and the back of the throat (buccal
delivery). This allows for the easy and efficient systemic delivery into the
bloodstream of a much wider variety of proteins and peptides.
These technology platforms have led to the development of Nutra Pharma's
Immunokine, which has been observed to improve function and relieve disabling
symptoms across the spectrum of MS patients. While results are preliminary and
are derived from an uncontrolled, open-label study, the findings are quite
promising. Patients and their treating physician have reported some profound
results.
The Immunokine is clearly well-tolerated. In contrast to the various beta-
interferon formulations, side-effects are minimal. Nutra Pharma's drug may
produce functional improvement and relief of some major MS symptoms -- benefits
that are not provided by the approved disease-modifying agents. If controlled
clinical trials confirm those observations, the agent could have a profound
effect on patients' lives. And the drug, once approved, should be quite
successful. If the Immunokine is also shown to retard disease progression, the
clinical case would be even more compelling.
Strategy for Commercial Development
Nutra Pharma's strategy is to raise sufficient capital to support the approved
Phase I and II clinical trials using two financing rounds. The rounds will be
priced to incorporate the increased company valuation (an independent analysis
will be completed shortly) as it progresses through the trials estimated to
take 12-18 months. After which, the Company will raise capital to fund final
Phase III trials and concomitant product "rollout" expenses a public offering
and/or licensing deals or partnerships with one or more established
pharmaceutical firms. Nutra Pharma's robust product pipeline should position
the Company as an attractive candidate for collaborative arrangements.
Production Facility
Nutra Pharma outsources all of its manufacturing to plants which meet Current
manufacturing meets cGMP (Good Manufacturing Practice) standards. GMP is a pre-
requisite for all drugs and medical devices, regardless of their
classification, as well as the incorporation of drugs and compounds into any
vehicle for its delivery to the wound. In order for us to be certain that we
are in compliance throughout all the levels of the manufacturing process,
periodic reviews are performed on the manufacturing facilities.
Product Liability Insurance
The testing, marketing and sale of human health care products entail an
inherent risk of allegations of product liability, and there can be no
assurance that product liability claims will not be asserted against us. We
have not obtained product liability insurance, and there can be no assurance
that the Company will be able to obtain insurance coverage in the future on
acceptable terms or that any claims against the Company will not exceed the
amount of such coverage.
Government Regulation
The production and marketing of the Company's products and its research and
development activities are subject to regulation by numerous governmental
authorities in the United States and other countries. In the United States,
vaccines, drugs and certain diagnostic products are subject to FDA review of
safety and efficacy. The Federal Food, Drug and Cosmetic Act, the Public Health
Service Act and other federal statutes and regulations govern or influence the
testing, manufacture, safety, labeling, storage, record keeping, approval,
advertising and promotion of such products. Noncompliance with applicable
requirements can result in criminal prosecution and fines, recall or seizure of
products, total or partial suspension of production, refusal of the government
to approve Biological License Applications ("BLAs"), Product License
Applications ("PLAs"), New Drug Applications ("NDAs") or refusal to allow the
Company to enter into supply contracts. The FDA also has the authority to
revoke product licenses and establishment licenses previously granted.
In order to obtain FDA approval to market a new biological or pharmaceutical
product, we must submit proof of product safety, purity, potency and efficacy,
and reliable manufacturing capability, which will require us to conduct
extensive laboratory, preclinical and clinical tests. This testing, as well
aspreparation and processing of necessary applications, is expensive, time-
consuming and often takes several years to complete. There is no assurance that
the FDA will act favorably in making such reviews. We may encounter significant
difficulties or costs in their efforts to obtain FDA approvals, which could
delay or preclude us from marketing any products that it may develop. The FDA
may also require postmarketing testing and surveillance to monitor the effects
of marketed products or place conditions on any approvals that could restrict
the commercial applications of such products. Product approvals may be
withdrawn if problems occur following initial marketing, such as, compliance
with regulatory standards is not maintained. With respect to patented products
or technologies, delays imposed by governmental marketing approval processes
may materially reduce the period during which we will have the exclusive right
to exploit patented products or technologies. See "Patents and Other Rights."
Refusals or delays in the regulatory process in one country may make it more
difficult and time consuming for us to obtain marketing approvals in other
countries.
The FDA approval process for a new biological or pharmaceutical drug involves
completion of preclinical studies and the submission of the results of these
studies to the FDA in an IND, which must be approved before human clinical
trials may be conducted. The results of preclinical and clinical studies on
biological or pharmaceutical drugs are submitted to the FDA in the form of a
BLA, PLA or NDA for product approval to commence commercial sales. In
responding to a BLA, PLA or NDA, the FDA may require additional testing or
information, or may deny the application. In addition to obtaining FDA approval
for each biological or chemical product, an Establishment License Application
("ELA") must be filed and the FDA must inspect and license the manufacturing
facilities for each product. Product sales may commence only when both BLA/
PLA/ NDA and ELA are approved.
In certain instances in which a treatment for a rare disease or condition is
concerned, the manufacturer may request the FDA to grant the drug product
Orphan Drug status for a particular use. In this event, the developer of the
drug may request grants from the government to defray the costs of certain
expenses related to the clinical testing of such drug and be entitled to
marketing exclusivity and certain tax credits. We may seek Orphan Drug
designation in the future for proposed products. If these products are the
first such products approved, we may be entitled to seven year marketing
exclusivity in the U.S. for these products once regulatory approval has been
obtained. The seven year period of exclusivity applies only to the particular
drug for the rare disease or condition for which the FDA has designated the
product an Orphan Drug. Therefore, another manufacturer could obtain approval
of the same drug for an indication other than the Company's or could seek
Orphan Drug status for a different drug for the same indication.
Sales of biological and pharmaceutical products and medical devices outside the
United States are subject to foreign regulatory requirements that vary widely
from country to country. Whether or not FDA approval has been obtained,
approval of a product or a device by a comparable regulatory authority of a
foreign country must generally be obtained prior to the commencement of
marketing in that country.
The Company is also subject to regulation by the Occupational Safety and Health
Administration ("OSHA") and the Environmental Protection Agency ("EPA") and to
regulation under the Toxic Substances Control Act, the Resource Conservation
and Recovery Act and other regulatory statutes, and may in the future be
subject to other federal, state or local regulations. The Company believes that
it is in compliance with regulations regarding the disposal of its biological,
radioactive and chemical waste. The Company voluntarily complies with NIH
guidelines regarding research involving recombinant DNA molecules. Such
guidelines, among other things, restrict or prohibit certain recombinant DNA
experiments and establish levels of biological and physical containment that
must be met for various types of research.
Property
The company maintains offices at 1850 NW 69th Ave., Suite 1, Plantation,
Florida 33313.
Patents
Patents covering the manufacturing process have been filed; the first was
recently issued. A new formulation of the modified protein may also prove
effective when administered orally. The Company has recently developed a new
spray "puffer" that permits efficient delivery of the agent through the oral
mucosa. Patent applications have been filed. Oral delivery may provide MS
patients with an additional "quality of life" benefit by eliminating or
decreasing the requirement for routine injections.
US Patent #5,989,857 was granted in November 1999 with 10 claims. It describes
a method for preparing a bioactive polypeptide (protein) in a stable,
inactivated form, by treating the protein with ozone. The process causes the
reduction of intermolecular disulfide bonds resulting in modified biological
activity. The reversion of the protein to its original activity is not
possible. The patent claims cover all proteins modified in this way with a
special emphasis on venom-derived proteins that when injected into a host
induce an immune reaction or displays anti-viral activity.
US Patent #5,512,278 was granted in 1996 and encompasses the formulation of a
cream base which can be employed not only in OTC applications but serves as a
topical delivery vehicle. The cream base has demonstrated the ability to
incorporate therapeutic proteins in a stable environment. The Company's lead
drug, Alpha-Immunokine has been administered in this vehicle for the treatment
of shingles and psoriasis. With the demonstration that Alpha-Immunokine can
inhibit the infection of HIV, it could be employed in a prophylactic role.
Patents in process include the Buccal Delivery System for oral administration
of protein drugs and the Immunokine Composition and Method patent application.
Competition
The biotechnical market is extremely competitive. In seeking to manufacture,
distribute and market the various products we intend to develop from the uses
of the Alpha-Immunokine compound, we face competition from established
pharmaceutical companies such as Schering AG, Biogen, Elan, among others. All
of our potential competitors in this field have considerably greater financial
resources than Nutra Pharma Corp.
Worldwide, the potential market for MS therapies is several billion dollars. In
the U.S. many patients with relapsing forms of MS are not receiving approved
'disease-modifying' therapies (Betaseron, Avonex, or Copaxone). In most other
countries where MS is prevalent, including Western Europe and Canada,
penetration of that segment of the MS population remains modest. And the
immunomodulatory drugs are used almost exclusively in relapsing forms of MS.
Worldwide, only a handful of patients with progressive forms of the disease are
on an approved disease-modifying therapy. [Betaseron was recently approved in
Europe and Canada for the treatment of certain patients with secondary-
progressive MS.] Nevertheless, sales of the beta-interferons and copaxone for
MS surpassed $900 million in 1998 and should approach $1.3 billion this year.
Employees
As of September 4, 2002 Nutra Pharma Corp. had nine full time employees, three
of which are engaged in management and product development, three full time
clerical employee, and three management employees.
Legal Proceedings
None
MANAGEMENT
Executive Officers, Key Employees and Directors
The members of the Board of Directors of Nutra Pharma Corp. serve until the
next annual meeting of stockholders, or until their successors have been
elected. The officers serve at the pleasure of the Board of Directors.
The current executive officers, key employees and directors of Nutra Pharma
Corp. are:
Name Age Position
- ---------------- ----- --------------------------------
Suzanne Mundschenk 64 Vice President
Michael D. Flax 47 Director
Soram Singh Khalsa, M.D. 50 Director, Chairman, Medical
Advisory Committee
Zirk Engelbrecht 45 Chairman of the Board of Directors,
Director
Nancy Volpe 58 Secretary/Treasurer
Suzanne Mundschenk is the Vice President since August 22, 2002. From 1983 to
2002 she was the VP / Administration of Bio Therapeutics, Inc. (formerly
Phylomed) where she was responsible for financial reporting, accounts
receivable and payable management and general operation of the facility. She
also served as Executive Vice President, Secretary and Director of Laboratory
Sciences Institute from 1983 to 1986. From 1980 to 1982 she was the Foreign
Liaison for R&D Systems and headed the acquisition of Hycel Europa, a
manufacturer and exporter of blood diluters. She holds an Associates Degree in
Arts from College Edouard-Montpetit in Montreal, Quebec, Canada.
Michael D. Flax, D.D.S., M.S., P.A. Dr. Flax is a director of Nutra Pharma
Corp. Since November 26, 2001, he was director, president and Chief Executive
Officer of Nutra Pharma. From 1986 to the present, he has been self employed in
the practice of Endontics in Coral Springs, Florida. Dr. Flax is a diplomat of
the American Board of Endontics, a member of the American Association of
Endontics, and a Fellow of the American College of Denists. Since 1991, he has
served on the board of Directors of Health Star, Inc., and currently serves as
director for Paragon Dental Services, Chief Financial Officer of Life Network
Engineering Technologies, Inc., Associate Professor, Graduate Endontics
Department at Nova South-eastern University School of Dentistry, Faculty
Instructor at the University of Pennsylvania, and Faculty Instructor at Temple
University. From 1984 through 1986, Dr. Flax served as a part time faculty
instructor at the University of Pennsylvania, School of Dental Medicine;
Endontics Dept., and was a sub-contractor for general dentistry in
Philadelphia, Pennsylvania. From 1981 through 1983, he was a subcontractor for
general dentistry in Florida, Long Island and New York City. He holds a
certificate from the University of Pennsylvania School of Dental Medicine in
Endontics, 1986, a D.D.S. from Georgetown University Dental School, 1981, an
M.S. in chemistry from St. John's University, 1977, and a B.A. major in
chemistry, minor in engineering from Miami University in Oxford, Ohio. He is
licensed to practice dentistry in the states of Florida, Maryland, New York,
Pennsylvania, and the District of Columbia.
Soram Singh Khalsa, M.D. is the current director of the Nutra Pharma Corp.
since February 6, 2002 and the Chairman of the Medical Advisory Committee. Dr.
Khalsa has been employed since 1977 in the practice of Internal Medicine and
Functional Medicine and is the current Medical Director of the Khalsa Medical
Clinic in Beverly Hills, California, and he is currently on the medical staff
of Cedars Sinai Hospital. From 1976 through 1977, Dr. Khalsa served his
residency in Internal Medicine at the Hospital of the Good Samaritan in Los
Angeles, California. From 1975 through 1976, he served as a resident of
Internal Medicine at St. Luke's Hospital in Cleveland, Ohio. From 2001 to the
present, Dr. Khalsa has served as a Member of the Outside Scientific Advisory
Board for the Center on Botanical Studies, National Institute of Health, and a
Member of the Advisory Board, Jewish Hospice Project, Los Angeles. From 2000 to
the present, Dr. Khalsa has served as a Member of the Medical Advisory Board ,
Great Smokies Diagnostic Laboratory, Asheville, North Carolina. From 1998 to
the present, he has served as the Medical Director of East-West Medical
Research Institute. From 1997 to 1999 Dr. Khalsa served as Chairman of the
Executive Steering Committee of Complementary Medicine at Cedars-Sinai Medical
Center, and from 1995 through 1997, he served as a Member of the Cedars-Sinai
Medical Center Task Force on Complementary Medicine. Dr. Khalsa is a Graduate,
cum laude, of Yale College, 1970; a Graduate of the American Institute of
Homeopathy, 1973; holds a certificate in the Post Graduate Training Program,
Millersville, Pennsylvania, 1973; and is a Graduate of the Case Western Reserve
University School of Medicine, 1974.
Zirk Engelbrecht. Mr. Engelbrecht has been a director since February, 2002, and
is the current Chairman of the Board of Directors. Mr. Engelbrecht holds a
degree in Mechanical Engineering, and a certificate from the Council for
Scientific and Industrial Research. He is the current President of Suprafin,
Inc., since 1995, and the president of Infoplan, Inc., since 1994. From 1989
through 1994, Mr. Engelbrecht served as the Managing Director of Suprafin CC, a
financial services and venture capital firm operating in South Africa. From
1983 through 1989, he was employed as the General Manager of Growth Equities,
Ltd., and from 1980 through 1983, he worked as a mechanical engineer for the
Council for Scientific and Industrial Research. Mr. Engelbrecht has overseen
the venture capital phase and public registration of three public companies
since 1994, and has managed a venture capital pool with assets of approximately
$54 million.
Nancy Volpe. Ms. Volpe is the current Secretary/Treasurer of Nutra Pharma Corp.
since November 26, 2001. She has been employed as the office manager of
Suprafin, Inc. and Infoplan, Inc., a company involved in investments and
venture capital, since February, 1997. From June, 1996 through February, 1997,
she was employed as a legal secretary for Offit and Kerrman. From February,
1995 through May, 1996, she was employed as a legal secretary for the Law
Office of Marcy Engelbrecht.
Item 3. Bankruptcy or Receivership
Not Applicable
Item 4. Changes in Registrant's Certifying Accountant
Not Applicable
Item 5. Other Events
As a result of the share exchange agreement, Nutra Pharma Corp. has modified
its control persons disclosure, as follows:
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT:
The following table sets forth certain information regarding the beneficial
ownership of the shares of Common Stock of Nutra Pharma Corp. as of the date of
this disclosure(1), by (I) each person who is known by Nutra Pharma Corp. to be
the beneficial owner of more than five percent (5%) of the issued and
outstanding shares of common stock, (ii) each of Nutra Pharma Corp.'s directors
and executive officers, and (iii) all directors and executive officers as a
group.
Name and Address Number of Shares Percentage Owned
- ---------------- ---------------- ----------------
Opus International, LLC 10,192,556 23.18%
Marcy Engelbrecht
485 Martin Lane
Beverly Hills, CA 90210
First International Bank 6,240,500 14.19%
And Trust
42 Kennedy Avenue
Rosseau, Dominica
West Indies
Dr. Michael Flax 3,000,000 6.82%
2929 University Dr. #102
Coral Springs, FL 33065
Suzanne Mundschenk 2,842,500 6.46%
1850 NW 69th Ave., Suite 1
Plantation, Florida 33313
Dr. Soram Sing Khalsa 1,500,000 3.41%
Bedford Dr.
Beverly Hills, CA 90210
Nancy Volpe 250,000 .005%
41 Hawk Rise Lane
Owings Mills, MD 21117
Officers and Directors 17,785,056 35.86%
as a Group
- --------
Computation based on 43,959,672 shares outstanding, which includes shares on
which stop transfer orders have been made.
Item 6. Resignations of Registrant's Directors
None
Item 7. Financial Statements and Exhibits
a. Financial Statements of Business Acquired.
It is impractical to provide the required financial statements of Bio
Therapeutics at this time. The registrant intends to file such financial
statements as soon as is practical, but not later than 60 days after this
report on Form 8-K is filed with the Commission.
b. Pro Form Financial Information.
It is impractical to provide the required pro forma financial statements at
this time. The registrant intends to file such pro forma consolidated financial
statements for itself and its wholly-owned subsidiaries as soon as is
practical, but not later than 60 days after this report on Form 8-K is filed
with the Commission.
c. Exhibits.
7.1 Definitive Agreement of Exchange of Common Stock dated May 30, 2002, by
and among Nutra Pharma Corp. and Bio Therapeutics, Inc.
7.2 Closing Agreement for the Exchange of Common Stock dated August 12,
2002 by and among Nutra Pharma Corp and Bio Therapeutics, Inc.
7.3 Amendment to Closing Agreement for the Exchange of Common Stock dated
September 27, 2002.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: November 1, 2002
Nutra Pharma Corp.
Zirk Engelbrecht
By: Zirk Engelbrecht, Chairman,
Board of Directors/VP
In connection with the current report of Nutra Pharma Corp. (the "Company") on
Form 8K for August 22, 2002, as filed with the Securities and Exchange
Commission on the date hereof, Zirk Engelbrecht and Nancy Volpe certify,
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that to the best of their knowledge:
1. The report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the report fairly presents, in all
material respects, the financial condition and results of the Company.
Dated: November 1, 2002 By: Zirk Engelbrecht
------------------------------
Chairman, Board of Directors/VP
Dated: November 1, 2002 By: Nancy Volpe
-----------------------------
Nancy Volpe, Secretary/Treasurer
<EXHIBIT>
7.1 Definitive Agreement of Exchange of Common Stock dated May 30, 2002, by
and among Nutra Pharma Corp. and Bio Therapeutics, Inc.
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED
IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 30th day of May, 2002, by and between Nutra Pharma
Corp., a California corporation, (the "ISSUER"), and for the benefit of the
individual shareholders, (the "SHAREHOLDERS"), which SHAREHOLDERS own of all
the issued and outstanding shares of Bio Therapeutics, Inc., a Florida
corporation ("Bio Therapeutics").
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES.
i. Subject to the terms and conditions of this Agreement, ISSUER
agrees to issue to SHAREHOLDERS, a total of 11,137,139 shares of the common
stock of ISSUER, in exchange for 100% of the issued and outstanding shares of
Bio Therapeutics, such that Bio Therapeutics shall become a wholly owned
subsidiary of the ISSUER. It is understood that Nutra Pharma will exchange
$2.40 worth of Nutra Pharma common stock for each share of Bio
Therapeuticscommon stock. In the event that Nutra Pharma's stock price is less
than $2.40 per share on the day of closing, additional shares will be issued to
reflect $2.40 worth of Nutra Pharma stock for every share of Bio Therapeutics
stock.
ii. The exchange of shares contemplated hereby is intended not to
give rise to any taxable income to either Issuer or Shareholders. The parties
agree to take all necessary steps to assure that no taxable income results from
this transaction.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants
to SHAREHOLDERS and Bio Therapeutics the following:
i. Organization. ISSUER is a corporation duly organized,
validly existing, and in good standing under the laws of California, and has
all necessary corporate powers to own properties and carry on a business, and
is duly qualified to do business and is in good standing in California. All
actions taken by the Incorporators, directors and shareholders of ISSUER have
been valid and in accordance with the laws of the State of California. ISSUER
is current in its reporting obligations to the Securities and Exchange
Commission.
ii. Capital. The authorized capital stock of ISSUER consists of
2,000,000,000 shares of common stock, $0.001 par value, of which 30,000,000 are
issued and outstanding. All outstanding shares are fully paid and
nonassessable, free of liens, encumbrances, options, restrictions (with the
exception of Rule 144 requirements) and legal or equitable rights of others not
a party to this Agreement. Following this closing, there shall be a total of
41,137,139 shares of common stock of ISSUER issued and outstanding and there
will be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating ISSUER to issue or to
transfer from treasury any additional shares of its capital stock. None of the
outstanding shares of ISSUER are subject to any stock restriction agreements.
All of the shareholders of ISSUER have valid title to such shares and acquired
their shares in a lawful transaction and in accordance with the laws of
California. Not included in the calculation of outstanding shares are 4,500,000
shares of restricted stock, the issuance of which Issuer has rescinded, and has
issued a stop-transfer with its transfer agent. In case Nutra Pharma decides to
not complete the acquisition of Bio Therapeutics, Nutra Pharma has agreed to
convert all outstanding loans to Bio Therapeutics common stock at a price of
$2.40 per share.
iii. Financial Statements. The financial statements of the ISSUER
have been prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and fairly
present the financial position of ISSUER as of the date of the balance sheet
and the financial statements, and the results of its operations for the periods
indicated. ISSUER is current in its filings with the Securities and Exchange
Commission.
iv. Absence of Changes. Since the date of the financial statements
filed with the Securities and Exchange Commission, there has not been anychange
in the financial condition or operations of ISSUER, except changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse, with the exception of a dispute which has arisen with the
Issuer's joint venture partner, Terra BioPharma, which has raised doubts as to
whether the Issuer's current products in development are patentable.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected on the ISSUERS'
financial statement. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock. There
is no dispute of any kind between the ISSUER and any third party, and no such
dispute will exist at the closing of this Agreement. At closing, ISSUER will be
free from any and all liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and
authority to enter into and perform its obligations under this Agreement. The
execution and delivery of this Agreement by Issuer and the performance by
ISSUER of its obligations hereunder will not cause, constitute, or conflict
with or result in (a) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which ISSUER or its shareholders are a party, or by which they may be bound,
nor will any consents or authorizations of any party other than those hereto be
required, (b) an event that would cause ISSUER to be liable to any party, or
(c) an event that would result in the creation or imposition or any lien,
charge or encumbrance on any asset of ISSUER or upon the securities of ISSUER
to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and warranties made
by the ISSUER, or in any certificate or memorandum furnished or to be furnished
by the ISSUER, contains or will contain any untrue statement of a material
fact, or omit any material fact the omission of which would be misleading.
viii. Contract and Leases. ISSUER is not currently carrying on any
business and is not a party to any contract, agreement or lease, except for the
joint venture agreement between Issuer and Terra BioPharma, which Issuer has
elected to rescind. No person holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party to any suit,
action, arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the ISSUER, there is no
basis for any such action or proceeding and no such action or proceeding is
threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct
its business in the normal course, and shall not (1) sell, pledge, or assign
any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, guarantee
obligations of any third party, or (6) enter into any other transaction.
xii. Documents. All minutes, consents or other documents pertaining to
ISSUER to be delivered at closing shall be valid and in accordance with the
laws of California.
xiii. Title. The Shares to be issued to SHAREHOLDERS will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind, shall be issued pursuant to
Regulation D, Section 506 and 4(2)of the Act and shall bear a Rule 144 legend.
None of such Shares are or will be subject to any voting trust or agreement. No
person holds or has the right to receive any proxy or similar instrument with
respect to such shares, except as provided in this Agreement. The ISSUER is not
a party to any agreement which offers or grants to any person the right to
purchase or acquire any of the securities to be issued to SHAREHOLDERS. There
is no applicable local, state or federal law, rule, regulation, or decree which
would, as a result of the issuance of the Shares to SHAREHOLDERS, impair,
restrict or delay SHAREHOLDERS' voting rights with respect to the Shares.
3. SHAREHOLDERS and Bio Therapeutics represent and warrant to ISSUER the
following:
i. Capital. The authorized capital stock of Bio Therapeutics
consists of 20,000,000 shares of common stock, $0.001 par value, of which
11,137,139 are issued and outstanding. All outstanding shares are fully paid
and nonassessable, free of liens, encumbrances, options, restrictions (with the
exception of Rule 144 requirements) and legal or equitable rights of others not
a party to this Agreement, except for 27,000 shares reserved for options which
have been granted in favor of two Bio Therapeutics employees. Following this
closing, there shall be a total of 11,137,139 shares of common stock of
BioTherapeutics issued and outstanding, not including 600,000 shares being
cancelled subject to litigation. There is also a pending agreement between Bio
Therapeutics and a group of shareholders to purchase and retire to Treasury all
shares that were subscribed for in a private placement of Bio Therapeutics
shares in 2001. There will be no outstanding subscriptions, options, rights,
warrants, convertible securities, or other agreements or commitments obligating
BioTherapeutics to issue or to transfer from treasury any additional shares of
its capital stock except as herein setforth. None of the outstanding shares of
BioTherapeutics are subject to any stock restriction agreements. All of the
shareholders of BioTherapeutics have valid title to such shares and acquired
their shares in a lawful transaction and in accordance with the laws of
Florida. In case Bio Therapeutics decides not to be acquired by Nutra Pharma,
all monies borrowed from Nutra Pharma will be recorded in the books and records
of Bio Therapeutics as a current liability.
ii. Financial Statements. The financial statements of the Bio
Therapeutics have been prepared in accordance with generally accepted
accounting principles consistently followed by Bio Therapeutics throughout the
periods indicated, and fairly present the financial position of Bio
Therapeutics as of the date of the balance sheet and the financial statements,
and the results of its operations for the periods indicated.
iii. Absence of Changes. Since the end of BioTherapeutics' last
quarter, there has not been any change in the financial condition or operations
of Bio Therapeutics, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
iv. Liabilities. Bio Therapeutics will not have any debt, liability,
or obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that will not be reflected on the
Bio Therapeutics' financial statement. Bio Therapeutics is not aware of any
pending, threatened or asserted claims, lawsuits or contingencies involving Bio
Therapeutics or its common stock. There will be no dispute of any kind between
the Bio Therapeutics and any third party, and no such dispute will exist at the
closing of this Agreement. At closing, Bio Therapeutics will be free from any
and all liabilities, liens, claims and/or commitments.
v. Ability to Carry Out Obligations. Bio Therapeutics has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by Bio Therapeutics and
the performance by Bio Therapeutics of its obligations hereunder will not
cause, constitute, or conflict with or result in (a) any breach or violation or
any of the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which Bio Therapeutics or its shareholders are a
party, or by which they may be bound, nor will any consents or authorizations
of any party other than those hereto be required, (b) an event that would cause
Bio Therapeutics to be liable to any party, or (c) an event that would result
in the creation or imposition or any lien, charge or encumbrance on any asset
of Bio Therapeutics or upon the securities of Bio Therapeutics to be acquired
by Nutra Pharma.
vi. Full Disclosure. None of the representations and warranties made
by the Bio Therapeutics, or in any certificate or memorandum furnished or to be
furnished by the Bio Therapeutics, contains or will contain any untrue
statement of a material fact, or omit any material fact the omission of which
would be misleading.
vii. Contract and Leases. (see attached schedule for all contracts and
leases)
viii. Compliance with Laws. Bio Therapeutics has complied with, and is
not in violation of any federal, state, or local statute, law, and/or
regulation pertaining to Bio Therapeutics. Bio Therapeutics has complied with
all federal and state securities laws in connection with the issuance, sale and
distribution of its securities. The management of Bio Therapeutics was not
closely involved in the private placement of beforementioned shares offered at
$8.00 per share and will therefore offer recision rights to all shareholders
that participated in said private placement.
ix. Litigation. (see attached scheduled of all past and current
litigation)
x. Conduct of Business. Prior to the closing, Bio Therapeutics shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3)
declare dividends, redeem or sell stock or other securities, (4) incur any
liabilities, (5) acquire or dispose of any assets, enter into any contract,
guarantee obligations of any third party, or (6) enter into any other
transaction.
xi. Documents. All minutes, consents or other documents pertaining to
Bio Therapeutics to be delivered at closing shall be valid and in accordance
with the laws of California.
xii. Title. The Shares to be issued to SHAREHOLDERS will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind, shall be issued pursuant to
Regulation D, Section 506 and 4(2)of the Act and shall bear a Rule 144 legend.
None of such Shares are or will be subject to any voting trust or agreement. No
person holds or has the right to receive any proxy or similar instrument with
respect to such shares, except as provided in this Agreement, Bio Therapeutics
is not a party to any agreement which offers or grants to any person the right
to purchase or acquire any of the securities to be issued to SHAREHOLDERS.
There is no applicable local, state or federal law, rule, regulation, or decree
which would, as a result of the issuance of the Shares to SHAREHOLDERS, impair,
restrict or delay SHAREHOLDERS' voting rights with respect to the Shares.
xiii. Organization. Bio Therapeutics is a corporation duly organized,
validly existing, and in good standing under the laws of Florida, has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Florida. All actions
taken by the Incorporators, directors and shareholders of Bio Therapeutics have
been valid and in accordance with the laws of Florida.
xiv. Shareholders and Issued Stock. Shareholders will deliver 100% of
the capital stock of Bio Therapeutics, and enters into this agreement with the
full authority and consent.
xv. General Obligations. Following the closing, Bio Therapeutics shall
comply with applicable federal and state securities laws.
xvi. Counsel. SHAREHOLDERS and Bio Therapeutics represent and warrant
that prior to Closing, that they are represented by independent counsel or have
had the opportunity to retain independent counsel to represent them in this
transaction.
4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant toan
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at the
offices of BioTherapeutics upon the closing of Issuer's raising of operating
capital via a private placement of its securities. Issuer shall raise a minimum
of $1,500,000 to a maximum of $5,000,000. The shares of Nutra Pharma and
BioTherapeutics being exchanged hereby shall be held by an escrow agent, the
identity of which shall be agreed upon by all parties, who shall hold all of
the documents called for in section 6 below, and release them only and released
upon satisfactory proof of the closing of the minimum amount raised in the
private placement, or the written instruction of the parties to this agreement.
The parties hereto agree to hold harmless and indemnify the escrow agent from
any and all liability which he or she may incur as a result of the holding and
distribution of said documents, except for any breach of fiduciary duty.
6. DOCUMENTS TO BE DELIVERED AT CLOSING THROUGH ESCROW AGENT.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a certificate
or certificates for 11,137,139 Shares, registered in the names of the
SHAREHOLDERS equal to their pro-rata ownership of shares in Bio Therapeutics.
All certificates shall be delivered promptly after closing.
(2) Current SEC filings of the ISSUER, which shall include a current
balance sheet and statements of operations, stockholders equity and cash flows
for the twelve (12) month period then ended.
(3) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDERS.
(4) An Opinion Letter from ISSUER's Attorney attesting to the validity
and condition of the ISSUER.
ii. By SHAREHOLDERS AND Bio Therapeutics:
(1) Delivery to the ISSUER, or to its Transfer Agent, the issued and
outstanding stock of Bio Therapeutics, with fully executed and medallioned
stock powers and third party releases.
(2) (this item has been deleted)
7. PRE AND POST CLOSING COVENANTS
A. Nutra Pharma has committed to loan up to $500,000 to BioTherapeutics
for operating capital. This commitment shall survive this agreement.
B. All intellectual property held and utilized by BioTherapeutics shall
remain the property of the owners thereof.
The board of directors of Nutra Pharma shall consist of seven members, four of
which shall be nominated by the board of directors of Nutra Pharma, and three
of which shall be nominated by the board of directors of Bio Therapeutics. The
board of directors of BioTherapeutics shall consist of the board as presently
constituted, plus two additional members nominated by the board of directors of
Nutra Pharma.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. No oral change. This Agreement and any provision hereof, may
not be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (I) the failure of any party to insist in any one
or more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the
breach or failure of a covenant, condition, or provision hereof shall not be
deemed a waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect to any
other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party
to whom notice is to be given, or on the third day after mailing if mailed
tothe party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: Kenneth G. Eade, Esq.
827 State Street, Suite 12
Santa Barbara, CA 93101
Phone: (805) 560-9828
Fax: (805) 560-3608
Bio Therapeutics: ____________________
____________________
____________________
Phone:
Fax:
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 30th
day of May, 2002.
Nutra Pharma Corp.
Michael Flax
By:
-----------------------
Michael Flax, President
Bio Therapeutics, Inc.
By: Suzanne Mundschenk
----------------------------
Suzanne Mundschenk, President
<EXHIBIT>
7.2 Closing Agreement for the Exchange of Common Stock dated August 12,
2002 by and among Nutra Pharma Corp and Bio Therapeutics, Inc.
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED
IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
CLOSING AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
THIS AGREEMENT, made this _12th day of August, 2002, amends that agreement
made the 30th day of May, 2002, by and between Nutra Pharma Corp., a
California corporation, (the "ISSUER"), and for the benefit of the individual
shareholders, (the "SHAREHOLDERS"), which SHAREHOLDERS own of all the issued
and outstanding shares of Bio Therapeutics, Inc., a Florida corporation
("BioTherapeutics") (hereinafter referred to as "The Original Agreement."), and
is intended to effectuate the closing of the Original Agreement.
WHEREAS, the Issuer has satisfied its commitment, contained in section 7A
of the Original Agreement to loan up to $500,000 to Bio Therapeutics for
operating capital; and
WHEREAS, the parties have determined that the closing of the Original
Agreement shall take place in two phases, as set forth below;
NOW, THEREFORE, In consideration of the mutual promises, covenants, and
representations contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES.
Subject to the terms and conditions of this Agreement, ISSUER shall
issue forthwith to SHAREHOLDERS, a total of 11,130,889 shares of the common
stock of ISSUER, in exchange for 100% of the issued and outstanding shares of
Bio Therapeutics, such that Bio Therapeutics shall become a wholly owned
subsidiary of the ISSUER. The certificates representing said shares of Issuer
and the certificates representing the shares of Bio Therapeutics to be
exchanged, along with duly executed stock powers therefor, shall be delivered
to and held by Kenneth G. Eade, Attorney at Law, (hereinafter "Trustee") as
escrow agent, pending the final closing of the Original Agreement. This shall
constitute the first phase of the closing of the Original Agreement. Both the
Issuer and Bio Therapeutics shall deliver to the Trustee the following
documents and things contained in paragraph 2, which shall be held and
administered by the Trustee in accordance with this agreement.
2. DOCUMENTS TO BE DELIVERED AT FIRST PHASE OF CLOSING TO TRUSTEE.
i. BY THE ISSUER:
(1) Board of Directors Minutes and instructions to Issuer's transfer
agent authorizing the issuance of a certificate or certificates for 11,130,889
Shares, registered in the names of the SHAREHOLDERS equal to their pro-rata
ownership of shares in Bio Therapeutics. All certificates shall be delivered
to the Trustee.
(2) Current SEC filings of the ISSUER, which shall include a current
balance sheet and statements of operations, stockholders equity and cash flows
for the twelve (12) month period then ended.
(3) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDERS.
ii. By SHAREHOLDERS AND BIO THERAPEUTICS:
(1) Delivery to the Trustee, of substantially all of the issued and
outstanding stock of Bio Therapeutics, with fully executed and medallioned
stock powers and third party releases.
(2) Delivery to the Trustee, in the event that the final Closing
does not take place due to failure of conditions of closing, duly executed
stock powers over the stock of Issuer to be issued herein, and a proxy in favor
of the Trustee to effect the cancellation of such shares.
3. FINAL CLOSING. The second phase of the closing of this transaction
shall take place upon the closing of Issuer's raising of operating capital via
a private placement of its securities. Issuer shall raise a minimum of
$1,500,000 to a maximum of $5,000,000. Upon the closing of the minimum capital
raise of $1,500,000, the Trustee, after having received a document signed by
all parties to this agreement, attesting to the closing of the minimum amount
raised in the private placement, shall release the shares of Bio Therapeutics
to Issuer and the Nutra Pharma shares to the Bio Therapeutics shareholders.
4. ADJUSTMENT TO SHARES DELIVERED ON FINAL CLOSING. If, at the
final closing of this transaction, which shall be defined as the day on which
the minimum amount raised in the private placement has closed, the common stock
of Issuer is not trading at a minimum of $2.40 per share, then the Issuer shall
issue an additional amount of shares of its common stock to reflect an exchange
price of $2.40 for every share of Bio Therapeutics.
5. EFFECT OF FAILURE OF CONDITIONS TO CLOSING. If the parties should
fail in any material respect to satisfy any conditions to close this agreement,
in the absence of written instructions signed by the parties and delivered to
the Trustee, the Trustee shall return all shares of Issuer issued pursuant to
this agreement to the Transfer Agent for cancellation, and shall return all
documents to each party who has delivered them to the Trustee.
6. INDEMNIFICATION OF TRUSTEE. If any dispute arises between the
parties or between the Trustee and any one of the parties as to the duties of
the Trustee with respect to this agreement, the Trustee may Interplead all
documents and funds deposited with him to a Court of competent jurisdiction.
The parties hereto agree to hold harmless and indemnify the Trustee from any
and all liability which he may incur as a result of the holding and
distribution of said documents, except for any breach of fiduciary duty.
7. INDEMNIFICATION OF DAVID AND SUZANNE MUNDSCHENK. The parties hereto
agree to indemnify and hold harmless David Mundschenk and Suzanne Mundschenk
from any and all liability they may incur as a result of any personal
guarantees of the corporate obligations of Bio Therapeutics, Inc.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. No oral change. This Agreement and any provision hereof, may
not be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (I) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the
breach or failure of a covenant, condition, or provision hereof shall not be
deemed a waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect to any
other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party
to whom notice is to be given, or on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: Nutra Pharma Corp.
485 Martin Lane
Beverly Hills, CA 90210
Phone: (310) 858-7088
Fax: (310) 858-7085
TRUSTEE: Kenneth G. Eade
827 State Street, Suite 12
Santa Barbara, CA 93101
Phone: (805) 560-9828
Fax: (805) 560-3608
Bio Therapeutics: 1850 N.W. 69th Ave., Suite 1
Plantation, FL 33313
Phone: (954) 321-5553
Fax: (954) 321-5630
viii. This agreement shall be construed in accordance with the laws of the
State of California.
ix. The parties agree to indemnify and hold the trustee harmless for any
acts other than a breach of fiduciary duty, and, further, agree to waive any
potential conflict of interest involving the trustee. The trustee shall not be
liable for any non-performance of any party, or the resolution of any dispute
between the parties. In the event of a dispute over the disbursement of cash
or stock, the Trustee shall be entitled to interplead any funds and/or stock
into a court of competent jurisdiction.
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 30th
day of May, 2002.
Nutra Pharma Corp.
Zirk Engelbrecht
By: ____________________________________
Zirk Engelbrecht, Board Chairman
Bio Therapeutics, Inc.
Suzanne Mundschenk
By: ___________________________________
Suzanne Mundschenk, President
<EXHIBIT>
Exhibit 7.3 Amendment to Closing Agreement for the Exchange of Common
Stock.
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED
IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
AMENDMENT TO CLOSING AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
THIS AGREEMENT, made this 27th day of September, 2002, amends that
agreement initially made on the 30th day of May, 2002, and subsequently
amended on August 12, 2002, by and between Nutra Pharma Corp., a
California corporation, (the "ISSUER"), and for the benefit of the individual
shareholders, (the "SHAREHOLDERS"), which SHAREHOLDERS own of all the issued
and outstanding shares of Bio Therapeutics, Inc., a Florida corporation ("Bio
Therapeutics") (hereinafter referred to as "The Original Agreement."), as
follows:
Paragraph 1, EXCHANGE OF SECURITIES shall be stricken and replaced as
follows:
1. EXCHANGE OF SECURITIES.
Subject to the terms and conditions of this Agreement, ISSUER shall
issue forthwith to SHAREHOLDERS, a total of 11,790,889 shares of the common
stock of ISSUER, in exchange for 100% of the issued and outstanding shares of
Bio Therapeutics, such that Bio Therapeutics shall become a wholly owned
subsidiary of the ISSUER. The certificates representing said shares of Issuer
and the certificates representing the shares of Bio Therapeutics to be
exchanged, along with duly executed stock powers therefor, shall be delivered
to and held by Kenneth G. Eade, Attorney at Law, (hereinafter "Trustee") as
escrow agent, pending the final closing of the Original Agreement. This shall
constitute the first phase of the closing of the Original Agreement. Both the
Issuer and Bio Therapeutics shall deliver to the Trustee the following
documents and things contained in paragraph 2, which shall be held and
administered by the Trustee in accordance with this agreement.
Paragraph 4 ADJUSTMENT TO SHARES DELIVERED ON FINAL CLOSING, shall be
stricken and replaced as follows:
4. ADJUSTMENT TO SHARES DELIVERED ON FINAL CLOSING. If, at the final
closing of this transaction, which shall be defined as the day on which the
minimum amount raised in the private placement has closed, the common stock of
Issuer is not trading at a minimum of $1.20 per share, then the Issuer shall
issue an additional amount of shares of its common stock to reflect an
exchange price of $1.20 for every share of Bio Therapeutics.
All other provisions of the Closing Agreement for the Exchange of Common
Stock dated August 12, 2002 and amending the agreement made on the 30th day of
May, 2002, shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Agreement to Closing
Agreement for the Exchange of Common Stock on the day and month aforesaid
intending to be bound thereby.
Nutra Pharma Corp.
Zirk Engelbrecht
By: ____________________________________
Zirk Engelbrecht, Board Chairman
Bio Therapeutics, Inc.
Suzanne Mundschenk
By: ___________________________________
Suzanne Mundschenk, President