AMENDMENT NO. 2 to
FINANCE AGREEMENT
This AMENDMENT NO. 2 TO FINANCE AGREEMENT (this "Amendment"), dated as
of March 17, 2000, by and between NATURADE, INC., a Delaware corporation
(the "Borrower"), and HEALTH HOLDINGS AND BOTANICALS, INC. a California
corporation (the "Lender").
RECITALS
WHEREAS, Borrower and Lender (collectively, the "Parties") are parties
to that certain Finance Agreement, dated as of March 17, 1999 (the "Finance
Agreement"; capitalized terms used appearing herein have the meanings
specified in the Finance Agreement), as amended by that certain Amendment No.
1 to Finance Agreement dated as of June 1, 1999 ("Amendment No. 1"), pursuant
to which the Borrower executed a Promissory Note dated March 17, 1999, in
favor of the Lender (the "Note");
WHEREAS, pursuant to the Finance Agreement and Amendment No. 1, (i) the
Lender has made Advances to Borrower in the aggregate principal amount of
$1,600,000, and (ii) the Borrower has issued to Lender an aggregate of
600,000 Warrants; and
WHEREAS, the Parties desire to convert the principal amount of all
Advances (together with accrued interest through the effective date of such
conversion (the "Conversion Date")) into shares of common stock of the
Borrower ("Common Stock");
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties agree as follows:
1. CONVERSION OF ADVANCES. All Advances, together with accrued
interest through the Conversion Date (the "Conversion Amount"), shall be
converted into that number of shares of Common Stock ("Shares") equal to the
Conversion Amount divided by the lower of (i) $1.00, or (ii) the average of
the Fair Market Value of the Common Stock for the ten (10) trading days
preceding the Conversion Date. No fraction of a share of Common Stock will be
issued, but in lieu thereof, the Lender shall receive from the Borrower an
amount of cash (rounded to the nearest whole cent)
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equal to the product of (i) that fraction, multiplied by (ii) the Fair Market
Value of Common Stock on the trading day preceding the Conversion Date.
2. UCC TERMINATION STATEMENT; RELEASE OF COLLATERAL; DELIVERY OF NOTE.
Simultaneously with the execution of this Agreement, Lender shall (i) execute
a UCC Termination Statement releasing its security interest in the Collateral
and Lender agrees that effective on the Conversion Date it shall no longer
have any interest whatsoever therein, and (ii) deliver the original Note
marked "cancelled."
3. LENDER REPRESENTATIONS. This Agreement is made with Lender in
reliance upon Lender's representation to the Borrower, which by its execution
of this Agreement it hereby confirms, that the Shares will be acquired for
investment for its own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof in contravention of
applicable law, and that Lender does not have any present intention of
selling, granting any participation in, or otherwise distributing the same in
contravention of applicable law. Lender has received all the information that
it considers necessary or appropriate for deciding whether to acquire the
Shares. Lender further represents that it has had an opportunity to ask
questions and receive answers from the Borrower regarding the terms and
conditions of the offering of the Shares. Lender acknowledges that it is able
to fend for itself, can bear the economic risk of its investment and has such
knowledge and experience in financial or business matters that it is capable
of evaluating the merits and risks of the investment in the Shares. Lender
understands that the Shares are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from
the Borrower in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), only in certain limited circumstances. In this connection, Lender
represents that it is familiar with Securities and Exchange Commission Rule
144, as presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act. Lender acknowledges that its investment in
the Shares may be an illiquid investment requiring it to bear the economic
risk of the investment for an indefinite period. Lender acknowledges and
consents to the inclusion on any certificates representing the Shares such
legends as shall be required by applicable law.
4. TERMINATION OF FINANCE AGREEMENT AND NOTE. The Parties agree that
upon the Conversion Date, (i) the Finance Agreement, Amendment No. 1 and the
Note shall be deemed terminated for all purposes and of no further force and
effect, and (ii) the Parties hereafter shall have no obligations to each
other whatsoever
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thereunder, except that Sections 7.02 through 7.10 of the Finance Agreement
shall remain in full force and effect so long as any Warrants are outstanding.
5. MISCELLANEOUS.
(a) EXPENSES. Each of the Parties shall bear its own respective
costs and expenses arising out of the negotiation, execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein.
(b) COOPERATION. Each of the Parties shall use its best efforts to
take or cause to be taken all actions, to execute such documents, to
cooperate with each other with respect to all actions, and to do or cause to
be done all things necessary, proper or advisable, in each case to consummate
and make effective the transactions contemplated by this Agreement.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged
representation, promise, inducement, or statement not so set forth herein.
(d) AMENDMENT. This Agreement may be modified, amended, superseded,
or canceled only by a written instrument signed by each of the Parties, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived only by a written instrument executed by the party to be bound
by any such waiver.
(e) SEVERABILITY. Nothing contained herein shall be construed to
require the commission of any act contrary to law. Should there be any
conflict between any provisions hereof and any present or future statute,
law, ordinance, regulation, or other pronouncement having the force of law,
the latter shall prevail, but the provision of this Agreement affected
thereby shall be curtailed and limited only to the extent necessary to bring
it within the requirements of the law, and the remaining provisions of this
Agreement shall remain in full force and effect.
(f) HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
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(g) COUNTERPARTS. This Agreement may be executed in several
counterparts and all documents so executed shall constitute one agreement,
binding on all of the parties hereto, notwithstanding that all of the parties
did not sign the original or the same counterparts. Delivery of an executed
counterpart of the signature page to this Agreement by facsimile shall be as
effective as delivery of a manually executed counterpart of this Agreement;
provided, that any party so delivering an executed counterpart by facsimile
shall thereafter promptly deliver a manually executed counterpart of this
Agreement to the other party, but failure to deliver such manually executed
counterpart shall not affect the validity, enforceability and binding effect
of this Agreement.
(h) SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective permitted assignees or
successors in interest.
(i) GOVERNING LAW. This Agreement is made under and shall be
construed pursuant to the laws of the State of California (excluding
principles of conflict of laws). In construing this Agreement, none of the
parties hereto shall have any term or provision construed against such party
solely by reason of such party having drafted the same.
(j) ATTORNEYS' FEES AND COSTS. In the event of any dispute arising
out of the subject matter of this Agreement, the prevailing party shall
recover, in addition to any other damages assessed, its reasonable attorneys'
fees and costs incurred in litigating, arbitrating, or otherwise settling or
resolving such dispute.
(k) NO THIRD PARTY BENEFICIARIES. Nothing herein expressed or
implied is intended to confer upon any person, other than the Parties hereto
and their respective permitted assignees, any rights, obligations or
liabilities under or by reason of this Agreement.
(l) WAIVER. The waiver by any of the parties, express or implied,
of any right under this Agreement or any failure to perform under this
Agreement by the other party, shall not constitute or be deemed a waiver of
any other right under this Agreement by the other party, whether of a similar
or dissimilar nature.
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IN WITNESS WHEREOF, the parties hereunto set their hands to this
Agreement as of the date and year first above written.
NATURADE, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
HEALTH HOLDINGS AND BOTANICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: President
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