EXHIBIT 10.1
MASTER INVESTMENT AGREEMENT
THIS MASTER INVESTMENT AGREEMENT (the "Agreement") is made and
entered into as of this twenty-second day of July, 2005, by and among Health
Holdings and Botanicals, LLC ("HHB"), Westgate Equity Partners, L.P.
("Westgate"), Quincy Investments Corp. ("Quincy"), Naturade, Inc. (the
"Company") and those persons whose names appear on the signature pages hereof
under the caption "Noteholders" (the "Noteholders"). HHB and Westgate are
referred to herein individually as a "Holder" and collectively as the "Holders."
R E C I T A L S
A. HHB owns 41,054,267 shares of the Company's common stock, $0.0001 par
value ("Common Stock"), which represents 92% of the Company's outstanding Common
Stock.
▇. ▇▇▇▇▇▇▇▇ owns 13,540,723 shares of the Company's Series B Convertible
Preferred Stock ("Series B"), which represents 100% of the Company's outstanding
Series B.
C. The Company desires Quincy to identify, negotiate and arrange the
financing for the acquisition by the Company of selected assets of The Ageless
Foundation, Inc. ("Ageless"), Symco, Inc. ("Symco") and Symbiotics, Inc.
("Symbiotics"), in consideration for which Quincy shall be entitled to receive
Common Stock, warrants to purchase additional shares of Common Stock, and shares
of a newly created series of preferred stock, with the rights, preferences and
privileges set forth herein (the "Series C").
D. To induce Quincy to enter into, and to perform its obligations under,
this Agreement and the other agreements and instruments referred to herein, HHB
agrees, on the terms set forth below, to convert all shares of Common Stock held
by it into Series C.
E. To induce Quincy to enter into, and to perform its obligations under,
this Agreement and the other agreements and instruments referred to herein,
Westgate agrees, on the terms set forth below, to convert all shares of Series B
held by it into Series C.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
obligations herein contained, it is agreed as follows:
1. ASSET PURCHASES.
(a) Quincy shall use its best efforts to enter into and
perform its obligations under (i) that certain Asset Purchase Agreement, by and
between Quincy and Ageless, attached hereto as Exhibit A (the "Ageless Purchase
Agreement") and (ii) that certain Asset Purchase Agreement, by and among Quincy,
Symco and Symbiotics, attached hereto as Exhibit B (the "Symco Purchase
Agreement").
(b) Concurrent with the execution and delivery of the Ageless
Purchase Agreement, Quincy and the Company shall enter into that certain
Assignment and Assumption Agreement attached hereto as Exhibit C (the "Ageless
Assignment Agreement").
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(c) Concurrent with the execution and delivery of the Symco
Purchase Agreement, Quincy and the Company shall enter into that certain
Assignment and Assumption Agreement attached hereto as Exhibit D (the "Symco
Assignment Agreement").
(d) Concurrent with the execution and delivery of the Ageless
Assignment Agreement and the Symco Assignment Agreement, the Company shall (i)
cause its transfer agent to deliver stock certificates to Quincy for 30,972,345
shares of Common Stock and 4,200,000 shares of Series C, and (ii) issue and
deliver to Quincy warrants to purchase up to 14,000,000 shares of Common Stock,
in substantially the forms attached hereto as Exhibits E-1 and E-2 (the "Quincy
Warrants").
2. CONVERSION.
(a) Concurrent with the execution and delivery of the Ageless
Assignment Agreement and the Symco Assignment Agreement, HHB shall deliver to
the Company for cancellation any stock certificate(s) representing the
41,054,267 shares of Common Stock held by it, and the Company shall cause its
transfer agent to deliver a stock certificate to HHB for 12,600,000 shares of
Series C in exchange therefor.
(b) Concurrent with the execution and delivery of the Ageless
Assignment Agreement and the Symco Assignment Agreement, Westgate shall deliver
to the Company for cancellation any stock certificate(s) representing the
13,540,723 shares of Series B held by it, and the Company shall cause its
transfer agent to deliver a stock certificate to Westgate for 4,200,000 shares
of Series C in exchange therefor.
(c) The Series C shall have the rights, preferences,
privileges, restrictions and other terms set forth in the Certificate of
Designation of Series C Convertible Preferred Stock, in substantially the form
attached hereto as Exhibit F (the "Certificate").
(d) Upon the delivery thereof as provided in Section 2(a) and
(b), HHB shall surrender all right, title and interest in and to the Common
Stock and Westgate shall surrender all right, title and interest in and to the
Series B, including any and all accrued and unpaid dividends on the Series B.
3. ISSUANCE OF WARRANTS.
(a) Concurrent with the conversion of HHB's Common Stock into
Series C, as provided in Section 2(a), the Company shall issue and deliver to
HHB a warrant to purchase up to 10,000,000 shares of Common Stock, in
substantially the form attached hereto as Exhibit G (the "HHB Warrant").
(b) The HHB Warrant and the Quincy Warrants are collectively
referred to herein as the "Warrants," and the Warrants, the Common Stock and the
Series C to be issued to HHB, Westgate or Quincy pursuant to this Agreement, and
the Common Stock issuable to HHB, Westgate or Quincy upon exercise of the
Warrants or the conversion of such Series C, are collectively referred to herein
as the "Securities."
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4. EXTENSION OF TERM.
(a) Concurrent with the execution and delivery of the Ageless
Purchase Agreement and the Symco Purchase Agreement, each Noteholder shall
extend the term of the Secured Promissory Notes issued pursuant to that certain
Loan Agreement dated as of April 23, 2003, from December 31, 2005 to December
31, 2006.
5. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. Quincy shall also be
referred to as a Holder for purposes of this Section 5 only. Each Holder
represents and warrants to the Company as follows:
(a) The Holder has good and marketable title to the Common
Stock or Series B held by it as of the date hereof, as applicable, free and
clear of liens, encumbrances, claims of third parties, security interests,
mortgages, pledges, requires no consent of third parties to enter into or
consummate the transactions contemplated in this Agreement, options and rights
of others of any kind whatsoever, whether or not filed, recorded or perfected.
(b) The Securities are being acquired by the Holder for
investment for an indefinite period, for the Holder's own account, not as a
nominee or agent, and not with a view to the sale or distribution of any part
thereof, and the Holder has no present intention of selling, granting
participations in, or otherwise distributing the same except as may be permitted
by the Securities Act of 1933, as amended (the "Act").
(c) The Holder does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer, or grant
participation to such person (other than existing investors in the Holder) or to
any third person, with respect to the Securities.
(d) The Holder understands that the Securities have not been
registered under the Act, in reliance upon the exemptions from the registration
provisions of the Act contained in Section 4(2) thereof, and any continued
reliance on such exemption is predicated on the representations of the Holder
set forth herein.
(e) The Holder understands that the Securities must be held
indefinitely unless the sale or other transfer thereof is subsequently
registered under the Act, as amended, or an exemption from such registration is
available. The Holder further understands that the Company is under no
obligation to register the Securities on its behalf or to assist it in complying
with any exemption from registration, except as otherwise expressly provided
herein.
(f) The Holder (i) has adequate means of providing for its
current needs and possible contingencies, (ii) has no need for liquidity in this
investment, (iii) is able to bear the substantial economic risks of an
investment in the Securities for an indefinite period, (iv) at the present time,
can afford a complete loss of such investment, and (v) does not have an overall
commitment to investments which are not readily marketable that is
disproportionate to the Holder's net worth, and the Holder's investment in the
Securities will not cause such overall commitment to become excessive.
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(g) The Holder is an "accredited investor" (as defined in Rule
501 of Regulation D promulgated under the Act, which is attached hereto as
Exhibit H).
(h) The Holder will not transfer the Securities without
registering them under applicable federal and state securities laws unless the
transfer is exempt from registration. The Holder realizes that the Company may
not allow a transfer of the Securities unless the transferee is also an
"accredited investor."
(i) The Company will direct its transfer agent to, or will
itself, place such a stop transfer order in its books respecting transfer of the
Securities, and the certificate or certificates representing the Securities will
bear the following legend or a legend substantially similar thereto:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THEY MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF (1)
AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
ACT, OR (2) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED."
(j) The Holder understands that Rule 144, promulgated by the
Securities and Exchange Commission under the Act, may not be currently available
for sale of the Securities, and there is no assurance that it will be available
at any particular time in the future. If and when Rule 144 is available for sale
of the Securities, such sales in reliance upon Rule 144 may only be (i) in
limited quantities after the shares of Common Stock issued pursuant to the
Ageless Assignment Agreement or the Symco Assignment Agreement or upon
conversion of the Series C or the exercise of the HHB Warrant or the Quincy
Warrants, as applicable, have been held for one (1) year after being sold by the
Company, or (ii) in unlimited quantities by non-affiliates after the shares of
Common Stock issued pursuant to the Ageless Assignment Agreement or the Symco
Assignment Agreement or upon conversion of the Series C or the exercise of the
HHB Warrant or the Quincy Warrants, as applicable, have been held for two (2)
years after being sold by the Company, in each case in accordance with the
conditions of Rule 144, all of which must be met (including the requirement, if
applicable, that adequate information concerning the Company is then available
to the public). The Company and the Holder acknowledge that the Company has no
obligation to supply the information required for sales under Rule 144.
6. REGISTRATION RIGHTS. The Company agrees to grant to the Holders
and Quincy certain registration rights with respect to the shares of Common
Stock issuable (i) upon conversion of the Series C to be issued to the Holders
under Sections 2(a) and (b) or (ii) upon exercise of the Warrants, as set forth
in the Registration Rights Agreement, in substantially the form attached hereto
as Exhibit I (the "Registration Rights Agreement"). The Company agrees to grant
to Quincy certain registration rights with respect to the shares of Common Stock
to be issued to it under Section 1(d), as set forth in the Registration Rights
Agreement.
7. CO-SALE RIGHTS. In the event Quincy desires to sell (or otherwise
transfer) any shares of Common Stock received pursuant to this Agreement,
including but not
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limited to, any shares issued pursuant to the Ageless Assignment Agreement or
the Symco Assignment Agreement or upon exercise of the Quincy Warrants (a
"Transfer"), other than a sale in the public market at Fair Market Value (as
defined below), Quincy shall first notify the Holders in writing of the proposed
sale (a "Transfer Notice"). Each Transfer Notice shall contain all material
terms of the proposed Transfer, including, without limitation, a copy of the
written offer received, the name and address of the prospective purchaser (or
transferee), the purchase price and terms of payment, the date and place of the
proposed Transfer, and the number and description of shares of Common Stock
proposed to be sold (or transferred) by Quincy (the "Co-Sale Shares"). Each
Holder shall then have seven (7) business days to elect to sell (or transfer) to
the proposed transferee its pro-rata portion of Common Stock on the same terms
and conditions as set forth in the Transfer Notice. For purposes of this
Agreement, "Fair Market Value" shall mean the average of the closing price of
Common Stock during the five (5) trading day period prior to the date of the
Transfer Notice, as reported by the Over-the-Counter Bulletin Board (or if the
Common Stock ceases trading on the Over-the Counter Bulletin Board, such other
national securities trading market in which the primary trading of Common Stock
occurs). For purposes of this Section 7 only, "pro-rata portion" shall mean an
amount determined by (i) multiplying the number of Co-Sale Shares offered for
sale (or transfer) by (ii) the ratio determined by dividing (A) the number of
shares of the Company's outstanding equity securities held by a Holder, on an
as-converted basis, by (B) the aggregate number of shares of the Company's
outstanding equity securities, on an as-converted bases, held by the Holders,
plus the number of shares of the Company's outstanding equity securities held by
Quincy on an as-converted basis.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each of the Holders and Quincy that:
(a) The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware without limit as to duration of
its existence, and is authorized and in good standing to do business in no other
state, except for the State of California; the Company has the corporate power
and authority to own its property and to carry on its business as now conducted;
and, subject to ratification by its Board of Directors, the Company has the
corporate power and adequate authority to enter into this Agreement.
(b) The execution and delivery of this Agreement, and subject
to filing the Certificate with the Delaware Secretary of State, the performance
of the provisions of this Agreement are not in contravention of or in conflict
with any law or regulation or any term or provision of the Company's Certificate
of Incorporation or By-Laws and are duly authorized and do not require the
consent or approval of any governmental body or other regulatory authority; and
this Agreement is a valid, binding and legal obligation of the Company,
enforceable in accordance with the terms herein.
(c) The Securities will, upon issuance pursuant to the terms
hereof, be duly authorized and validly issued, fully paid and nonassessable.
9. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings relating to such subject matter.
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10. AMENDMENT. This Agreement may not be amended except by written
document executed by the parties hereto.
11. SUBJECT HEADINGS. Subject headings are included for convenience
only and shall not be deemed part of this Agreement.
12. SEVERABILITY. If any provision of this Agreement shall be held
unenforceable as applied to any circumstance, the remainder of this Agreement
and the application of such provision to other circumstances shall be
interpreted so as best to effect the intent of the parties. The parties further
agree to replace any such unenforceable provision with an enforceable provision
(and to take such other action) which will achieve, to the extent possible, the
purposes of the unenforceable provision.
13. GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be
governed by and construed under the laws of the State of California in force
from time to time. Each party hereto, to the fullest extent it may effectively
do so under applicable law, irrevocably (i) submits to the exclusive
jurisdiction of any court of the State of California or the United States of
America sitting in the City of Los Angeles over any suit, action or proceeding
arising out of or relating to this Agreement, (ii) waives and agrees not to
assert, by way of motion, as a defense or otherwise, any claim that it is not
subject to the jurisdiction of any such court, any objection that it may now or
hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum,
and (iii) agrees that a final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon such party and
may be enforced in the courts of the United States of America or the State of
California (or any other courts to the jurisdiction of which such party is or
may be subject) by a suit upon such judgment.
14. PARTIES BOUND. This Agreement is binding on and shall inure to
the benefit of the parties and their respective successors, assign, heirs, and
legal representatives.
15. SURVIVAL. The representations, warranties, covenants, and
agreements contained in this Agreement shall survive the consummation of the
transactions contemplated hereby.
16. COUNTERPARTS. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
The next page is the signature page.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
NATURADE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Executive Officer
HEALTH HOLDINGS AND BOTANICALS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
WESTGATE EQUITY PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Partner
QUINCY INVESTMENTS CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman
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NOTEHOLDERS: HEALTH HOLDINGS AND BOTANICALS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Secretary
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
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