U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 20, 2004
COMMISSION FILE NUMBER: 000-32141
Nutra Pharma Corp.
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(Exact name of registrant as specified in its charter)
California 91-2021600
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(State or jurisdiction of incorporation (I.R.S. Employer I.D. No.)
or organization)
4001 NW 73rd Way
Coral Springs, Florida 33065
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number: (954) 509-0911
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(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets
On December 12, 2003, the Registrant entered into an Acquisition Agreement (the
"Agreement"), subject to the approval of the board of directors of Receptopharm
Inc. This Agreement was subsequently approved as modified on February 20,
2004.
Pursuant to this Agreement the Registrant agreed to acquire a 49.5% interest in
the common stock equity of Receptopharm Inc., in exchange for an investment of
$2.0 million in cash. As of February 20, 2004, the Registrant has paid
$500,000 to Receptopharm. The Registrant will pay an additional $1.5 million in
cash to Receptopharm over the next seven months to complete the acquisition.
Receptopharm Inc. is a privately held bio-pharmaceutical company based in Ft.
Lauderdale, Florida. Receptopharm is currently developing proprietary
therapeutic proteins for the treatment of several chronic, life-threatening,
viral, auto-immune and neuro-degenerative disorders, including Rabies, HIV,
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Multiple Sclerosis (MS) and Myasthenia gravis (MG). Receptopharm's leading
drug candidates, with data contribution from Nutra Pharma's recent trials, have
completed Phase I safety studies in the United States and Europe, and these
studies have shown that the drugs have been successful at inhibiting a wide
range of medically significant viruses.
Item 7. Financial Statements and Exhibits
(a) Financial Statements of Business Acquired.
It is impractical to provide the financial statements of Receptopharm at the
present time. The Registrant will file the required financial statements
within 60 days after filing of this report.
(b) Pro forma Financial Information.
It is impractical to provide pro forma financial information at the present
time. The Registrant will file the required pro forma financial information
within 60 days after filing of this report.
(c) Exhibits.
Exhibit 7.1. Acquisition Agreement by and between Nutra Pharma Corp. and
Receptopharm Inc.
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: March 8, 2004
Nutra Pharma Corp.
/s/ Rik Deitsch
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By: Rik Deitsch
Its: Chief Executive Officer and Chief Financial Officer
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CERTIFICATION
In connection with the current report of Nutra Pharma Corp. ("Company") on Form
8-K dated March 8, 2004, as filed with the Securities and Exchange Commission
on the date hereof, Rik Deitsch certifies, 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 his 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: March 8, 2004 /s/ Rik Deitsch
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By: Rik Deitsch
Its: Chief Executive Officer,
And Chief Financial Officer
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Exhibit 7.1. Acquisition Agreement between Nutra Pharma Corp. and Receptopharm
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.
ACQUISITION AGREEMENT
THIS AGREEMENT (hereinafter "the Agreement"), is made and entered into
as of the 20th day of February, 2004, by and between Nutra Pharma Corp., a
California corporation (hereinafter "Nutra Pharma"), Receptopharm, Inc., a
Nevada corporation (hereinafter "Receptopharm"), by and for the benefit of its
shareholders, who, in consideration of the mutual promises and covenants
contained herein, agree as follows:
1. RECITALS:
This agreement is made and entered into with reference to the
following facts and circumstances:
A. Nutra Pharma is a publicly held California corporation, with
currently issued and outstanding, 49,871,427 shares of common stock, whose
business plan consists of the development of bio pharmaceutical products, and
is the licensee of certain intellectual property, consisting of a bioactive
peptide cobratoxin that has been inactivated by ozonation and that is labeled
and used for treating MS or HIV, a description of which is attached hereto and
incorporated by reference herein as Attachment 1 (hereinafter referred to as
"the MS/HIV intellectual property.")
B. Nutra Pharma is a publicly held, reporting company, whose
securities are quoted on the NASD over-the-counter bulletin board under the
trading symbol, "NPHC."
C. Receptopharm is a privately held Nevada corporation, with
currently issued and outstanding, 6,900,000 shares of common stock, who is
interested in Nutra Pharma taking a 49.5% equity position in its common stock,
in order to improve its opportunities for the development of its bio
pharmaceutical products and the financing of that development.
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2. ACQUISITION OF 49.5% OF RECEPTOPHARM STOCK.
In exchange for an amount of common stock to be issued by
Receptopharm from its treasury pursuant to Section 4(2) of the Securities Act
of 1933, which amount of common stock shall equal 49.5% of its issued and
outstanding common stock, including shares of common stock reserved for the
issuance of options, as calculated as of the time of the closing of this
agreement, Nutra Pharma shall assign all of its right, title and interest in
and to the MS/HIV intellectual property described in Attachment 1 to
Receptopharm, and will contribute working capital for the development of
Receptopharm, its technology and products as follows:
A. Receptopharm acknowledges receipt of $400,000 in capital
contributions from Nutra Pharma, to be applied toward Nutra Pharma's entire
capital commitment.
B. Nutra Pharma shall contribute additional capital to Receptopharm
in the aggregate amount of $1.6 million, pursuant to the payment schedule
attached hereto as Attachment 2, (hereinafter "the Payment Schedule"), for a
total capital commitment of $2 million.
3. POST CLOSING COVENANTS
A. Should Receptopharm authorize the issuance of and issue any
further shares of stock within the twelve months following the closing of this
agreement, Receptopharm shall issue an additional amount of shares to Nutra
Pharma to maintain its 49.5% equity position in Receptopharm. This shall not
include the issuance of stock to secure the services of a scientist to serve as
a consultant or executive officer or director, the employment of which shall be
subject to the mutual agreement of Receptopharm and Nutra Pharma.
B. Receptopharm warrants that any and all rights to existing and new
biotechnology platforms, drugs and products developed or to be developed by it,
will be owned solely by Receptopharm and no other entity, without the express
written permission of Nutra Pharma.
C. Rik Deitsch, President of Nutra Pharma, shall be appointed to the
board of directors of Receptopharm, Inc.
4. CONDITIONS PRECEDENT TO NUTRA PHARMA'S PERFORMANCE
The acquisition of Receptopharm stock is conditioned upon the
following:
A. There shall have been no material adverse change in the business
or conditions (financial or otherwise) of Receptopharm since the execution of
the letter of intent between the parties.
B. The representations and warranties contained in this agreement shall have
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been true in all material respects when made, and, in addition, shall be true
and correct in all material respects as of the Closing Date, except for
representations and warranties specifically relating to a time or times other
than the Closing Date (which shall be true and correct in all material respects
at such time or times) and except for changes contemplated and permitted by
this Agreement, with the same force and effect as if made as of the Closing
Date. Receptopharm shall have performed or complied in all material respects
with all terms, agreements, and covenants and conditions required by this
Agreement to be performed by it or prior to the Closing Date, and shall deliver
a certificate of its President and Secretary or Assistant Secretary to such
effect on the Closing Date.
5. CONDITIONS PRECEDENT TO RECEPTOPHARM'S PERFORMANCE
The acquisition of Receptopharm stock is conditioned on the following:
A. There shall have been no material adverse change in the business
or conditions (financial or otherwise) of Nutra Pharma since the execution of
the letter of intent between the parties.
B. The representations and warranties contained in this agreement
shall have been true in all material respects when made, and, in addition,
shall be true and correct in all material respects as of the Closing Date,
except for representations and warranties specifically relating to a time or
times other than the Closing Date (which shall be true and correct in all
material respects at such time or times) and except for changes contemplated
and permitted by this Agreement, with the same force and effect as if made as
of the Closing Date. Nutra Pharma shall have performed or complied in all
material respects with all terms, agreements, and covenants and conditions
required by this Agreement to be performed by it or prior to the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF RECEPTOPHARM
Receptopharm hereby represents and warrants to Nutra Pharma as
follows:
A. Receptopharm is a corporation duly formed and validly existing
and in good standing under the laws of the state of Nevada, it has all
necessary corporate powers to own its properties and carry on its business as
now owned and operated by it, and is in good standing in every jurisdiction in
which failure to qualify would have a material adverse affect on its business
and financial condition, and has the corporate power to enter into and perform
this agreement, subject only to the approval of its shareholders. Such
execution, delivery and performance of this Agreement and all other instruments
and documents to be delivered hereunder have been duly authorized by all
necessary corporate action on the part of Receptopharm, and will not contravene
or violate or constitute a breach of the terms of its Articles of
Incorporation, founding documents, or By-Laws, or conflict with, result in a
breach of, or entitle any party to terminate or call a default with respect to
any instrument or decree to which either is bound or any contract or any
instrument, judgment, order, decree, law, rule or regulation applicable to it.
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Neither Receptopharm, nor their shareholders is a party to, or subject to, or
bound by any judgment, injunction, or decree of any court or governmental
authority or agreement which may restrict or interfere with its performance of
this Agreement. This Agreement has been duly executed and delivered and
constitutes, and the other instruments and documents to be delivered by
Receptopharm hereunder will constitute, the valid and binding obligations of
both of them, enforceable against it in accordance with their respective terms.
B. Except as otherwise set forth herein, no consent of any party to
any contract or arrangement to which Receptopharm is a party or by which it is
bound is required for the execution, performance, or consummation of this
Agreement.
C. There are no actions, suits, proceedings, orders, investigations
or claims pending or, to Receptopharm's knowledge, threatened against either
one of them, at law or in equity, or before any federal, state or other
governmental body, other than those disclosed in the due diligence materials.
D. The representations and warranties contained in this Section will
be accurate, true and correct, in all respects, on and as of the date of
Closing as though made at such date in identical language.
E. All of Receptopharm's assets are free and clear of security
interests, liens, pledges, charge and encumbrances, equities or claims, except
those obligations to shareholders and others as reported on its financial
statements.
F. Neither Receptopharm, nor any of its officers and directors has
ever been convicted of any felony or misdemeanor offense involving moral
turpitude; nor have they been the subject of any temporary or permanent
restraining order resulting from unlawful transactions in securities; nor are
they now, or have they ever been, a defendant in any lawsuit alleging unlawful
business practices or the unlawful sale of securities; nor have they been the
debtor in any proceedings, whether voluntary or involuntary, filed in the U.S.
Bankruptcy Court.
G. The execution, delivery and performance of this agreement by
Receptopharm does not require the consent, waiver, approval, license or
authorizations of any person or public authority which has not been obtained,
does not violate, with or without the giving of notice or the passage of time
or both, any law applicable to either Receptopharm, and does not conflict with
or result in a breach or termination of any provisions of, or constitute a
default under, or result in the creation of any lien, charge or encumbrance
upon any of the property or assets of Receptopharm.
H. Receptopharm has complied with all laws, ordinances, regulations and orders
which have application to their respective businesses, the violation of which
might have a material adverse effect on their respective financial condition or
results of operations, and possesses all governmental licenses and permits
material to and necessary for the conduct of their respective business, the
absence of which might have a material adverse effect on their respective
financial condition or results of operations. All such licenses and permits
are in full force and effect, no violations are or have been recorded in
respect of any such licenses or permits, and no proceeding is pending or
threatened to revoke or limit any such licenses or permits.
I. The shares of common stock are owned beneficially and of record by
Receptopharm's shareholders and no other share capital of Receptopharm is
issued and outstanding. There are no subscriptions, options or other
agreements or commitments, obligating Receptopharm to issue any shares or
securities convertible into its shares at the date of this agreement, except
for those to former officers and directors, which are currently frozen, and
there shall not be any others on the Closing Date.
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J. Receptopharm has made available to Nutra Pharma all of its
audited and unaudited financial statements, all of its notes, mortgages and
other obligations and agreements and other instruments for or relating to any
borrowing effected by Receptopharm or to which any properties or assets of
Receptopharm is subject, leases and similar agreements under which
Receptopharm is subject, and a list of any and all contracts, agreements, and
other instruments material to the conduct of Receptopharm's business.
Receptopharm has performed all obligations required by it to be performed under
the any of the foregoing, and there has not occurred any event which with the
passage of time or giving notice or both would constitute a default.
K. Receptopharm is the owner of the intellectual property and patents
pending described as set forth in Attachment 3, which is incorporated by
reference herein.
7. REPRESENTATIONS AND WARRANTIES OF NUTRA PHARMA
Nutra Pharma hereby represents and warrants as follows:
A. Nutra Pharma is a corporation duly formed and validly existing
and in good standing under the laws of the state of California, it has all
necessary corporate powers to own its properties and carry on its business as
now owned and operated by it, and is in good standing in every jurisdiction in
which failure to qualify would have a material adverse affect on its business
and financial condition, and has the corporate power to enter into and perform
this agreement, subject only to the approval of its shareholders. Such
execution, delivery and performance of this Agreement and all other instruments
and documents to be delivered hereunder have been duly authorized by all
necessary corporate action on the part of Nutra Pharma, and will not contravene
or violate or constitute a breach of the terms of its Articles of
Incorporation, founding documents, or By-Laws, or conflict with, result in a
breach of, or entitle any party to terminate or call a default with respect to
any instrument or decree to which either is bound or any contract or any
instrument, judgment, order, decree, law, rule or regulation applicable to it.
Nutra Pharma is not a party to, or subject to, or bound by any judgment,
injunction, or decree of any court or governmental authority or agreement which
may restrict or interfere with its performance of this Agreement. This
Agreement has been duly executed and delivered and constitutes, and the other
instruments and documents to be delivered by Nutra Pharma hereunder will
constitute, the valid and binding obligations of it, enforceable against it in
accordance with their respective terms.
B. Except as otherwise set forth herein, no consent of any party to
any contract or arrangement to which Nutra Pharma is a party or by which it is
bound is required for the execution, performance, or consummation of this
Agreement.
C. The representations and warranties contained in this Section will
be accurate, true and correct, in all respects, on and as of the date of
Closing as though made at such date in identical language.
D. All of Nutra Pharma's assets are free and clear of security
interests, liens, pledges, charge and encumbrances, equities or claims, except
those obligations to shareholders and others as reported on its financial
statements.
E. Neither Nutra Pharma , nor any of its officers and directors has
ever been convicted of any felony or misdemeanor offense involving moral
turpitude; nor have they been the subject of any temporary or permanent
restraining order resulting from unlawful transactions in securities; nor are
they now, or have they ever been, a defendant in any lawsuit alleging unlawful
business practices or the unlawful sale of securities; nor have they been the
debtor in any proceedings, whether voluntary or involuntary, filed in the U.S.
Bankruptcy Court.
F. The authorized share capital of Nutra Pharma consists of 2
billion (2,000,000,000) shares of common class stock, 49,871,427 of which are
issued and outstanding, and are owned, beneficially and of record by Nutra
Pharma's shareholders and no other share capital of Nutra Pharma is issued and
outstanding. There are no subscriptions, options or other agreements or
commitments, obligating Nutra Pharma to issue any shares or securities
convertible into its shares at the date of this agreement, and there shall not
be any others on the Closing Date.
G. Nutra Pharma has made available to Receptopharm all of its reports
on file with the Securities and Exchange Commission, which reports reflect all
of its audited and unaudited financial statements, all of its notes, mortgages
and other obligations and agreements and other instruments for or relating to
any borrowing effected by Nutra Pharma or to which any properties or assets of
Nutra Pharma is subject, leases and similar agreements under which Nutra Pharma
is subject, and a list of any and all contracts, agreements, and other
instruments material to the conduct of Nutra Pharma's business. Nutra Pharma
has performed all obligations required by it to be performed under the any of
the foregoing, and there has not occurred any event which with the passage of
time or giving notice or both would constitute a default.
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H. The execution, delivery and performance of this agreement by Nutra Pharma
does not require the consent, waiver, approval, license or authorizations of
any person or public authority which has not been obtained, does not violate,
with or without the giving of notice or the passage of time or both, any law
applicable to Nutra Pharma, and does not conflict with or result in a breach or
termination of any provisions of, or constitute a default under, or result in
the creation of any lien, charge or encumbrance upon any of the property or
assets of Nutra Pharma.
I. Nutra Pharma has complied with all laws, ordinances, regulations
and orders which have application to its business, the violation of which might
have a material adverse effect on its financial condition or results of
operations, and possesses all governmental licenses and permits material to and
necessary for the conduct of its business, the absence of which might have a
material adverse effect on their respective financial condition or results of
operations. All such licenses and permits are in full force and effect, no
violations are or have been recorded in respect of any such licenses or
permits, and no proceeding is pending or threatened to revoke or limit any such
licenses or permits.
J. All of the representations and warranties herein made by Nutra
Pharma are applicable to it and to each of its subsidiaries as well.
K. There are no actions, suits, and proceedings pending or threatened
against or affecting Nutra Pharma or its respective properties, business, or
subsidiaries, at law or in equity and before or by any federal, state or other
governmental body or any arbitration board, domestic or foreign. Nutra Pharma
has no knowledge or notice of, any grounds for any other action, suit or
proceeding.
8. CLOSING
At the Closing, Receptopharm shall issue and deliver to Nutra Pharma,
a stock certificate for 1,380,000 shares which represents 20% of Receptopharm's
issued and outstanding common stock and Nutra Pharma shall deliver to
Receptopharm an assignment of its license to the intellectual property
specified in Attachment 1. The closing shall take place at the offices of
Nutra Pharma on or before 7 days after the execution of this agreement.
9. ISSUANCE OF ADDITIONAL SHARES BY RECEPTOPHARM
As additional payments are made by Nutra Pharma to Receptopharm
pursuant to the Payment Schedule, Receptopharm shall calculate the number of
additional shares of common stock to be issued to Nutra Pharma pursuant to the
following formula:
(Amount of the payment made by Nutra Pharma divided by 2,000,000) multiplied by
6,900,000
On the last day of each calendar quarter, Receptopharm shall issue one
stock certificate to Nutra Pharma which shall represent the total number of
shares purchased by Nutra Pharma during the calendar quarter pursuant to the
above formula.
At the time Nutra Pharma makes the final payment to Receptopharm pursuant
to the Payment Schedule, Receptopharm will issue a final stock certificate to
Nutra Pharma representing the number of shares of common stock which, when
added to the total number of shares previously issued to Nutra Pharma, shall
equal exactly 49.5% of the total number of shares of Receptopharm that are
currently issued and outstanding at the time.
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10. NECESSARY APPROVALS
This agreement is contingent upon the approval of both company's Board
of Directors.
11. NOTICES
Any notices called for in this agreement shall be effective upon
personal service or upon service by first class mail, postage prepaid, to the
parties at such addresses to be designated by the parties in writing.
12. EVENT OF DEFAULT; CURE PROVISION
In the event of a default by Nutra Pharma pursuant to the Payment
Schedule, Receptopharm shall notify Nutra Pharma's President in writing. Said
notice shall be made via facsimile and e-mail. If the default is not cured
within 5 business days after written notification, this agreement can be
terminated by Receptopharm.
13. MISCELLANEOUS PROVISIONS:
This agreement shall be construed in accordance with the laws of the
State of Florida.
This agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their beneficiaries, heirs, representatives, assigns, and
all other successors in interest.
Each of the parties shall execute any and all documents required to be
executed and perform all acts required to be performed in order to effectuate
the terms of this agreement.
This agreement contains all of the agreements and understandings of
the parties hereto with respect to the matters referred to herein, and no prior
agreement or understanding pertaining to any such matters shall be effective
for any purpose.
Each of the parties hereto has agreed to the use of the particular language of
the provisions of this Agreement, and any question of doubtful interpretation
shall not be resolved by any rule of interpretation against the party who
causes the uncertainty to exist or against the draftsman.
This agreement may not be superseded, amended or added to except by an
agreement in writing, signed by the parties hereto, or their respective
successors-in-interest.
Any waiver of any provision of this agreement shall not be deemed a
waiver of such provision as to any prior or subsequent breach of the same
provision or any other breach of any other provision of this agreement.
If any provision of this agreement is held, by a court of competent
jurisdiction, to be invalid, or unenforceable, said provisions shall be deemed
deleted, and neither such provision, its severance or deletion shall affect the
validity of the remaining provisions of this agreement, which shall,
nevertheless, continue in full force and effect.
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The parties may execute this agreement in two or more counterparts,
each of which shall be signed by all of the parties; and each such counterpart
shall be deemed an original instrument as against any party who has signed it.
The parties shall use their reasonable best efforts to obtain the
consent of all necessary persons and agencies to the transfer of shares
provided for in this agreement.
Each party shall bear their own attorney's fees and costs with respect
to their due diligence and review of this Agreement. Nutra Pharma shall bear
all the costs associated with the acquisition of the shares, including any SEC
filings, state filings, and disclosures.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
Nutra Pharma Corp.
/s/ RIK DEITSCH
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By: RIK DEITSCH
President and
Chief Executive Officer
Receptopharm, Inc.
/s/ HAROLD H. RUMPH
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By: HAROLD H. RUMPH, President
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ATTACHMENT 1
U.S. Patent Application for POLYPEPTIDE COMPOSITIONS AND METHODS ISSUED
Filed 8/7/97 Serial No. 08/908,212
Issued 11/23/99 Patent No. 5,989,857
U.S. Patent Application for POLYPEPTIDE COMPOSITIONS AND METHODS PENDING
Filed 8/5/99 Serial No. 09/368,834
U.S. Patent Application for POLYPEPTIDE COMPOSITIONS AND METHODS PENDING
Filed 11/7/02 Serial No. 10/289,834
U.S. Patent Application for IMMUNOKINE COMPOSITION AND METHOD PENDING
Filed March 23, 2000 Serial No. 09/533,454
U.S. Patent Application for IMMUNOKINE COMPOSITION AND METHOD PENDING
Filed November 12, 2002 Serial No. 10/292,164
U.S. Patent Application for BUCCAL DELIVERY SYSTEM PENDING
Filed January 28, 2000 Serial No. 009070632
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ATTACHMENT 2
PAYMENT SCHEDULE
Payments shall be made by Nutra Pharma to Receptopharm as follows:
$ 100,000 on 2/13/04
$ 100,000 on 2/28/04
$ 100,000 on 3/7/04
$ 100,000 on 3/14/04
$ 200,000 on 4/14/04
$ 200,000 on 5/14/04
$ 200,000 on 6/14/04
$ 200,000 on 7/14/04
$ 400,000 on 10/1/04
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$1,600,000
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