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EXHIBIT 10.7
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is
made
and entered into as of this twenty-second
day of July, 2005, by and among Symco,
Inc. and Symbiotics, Inc. (collectively,
"Symbiotics"), Quincy Investments Corp.
("Quincy") and Naturade, Inc. (the
"Company").
RECITALS
A. 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. and Symbiotics, in
consideration for which Quincy shall be
entitled to receive Common Stock, Series C
Convertible Preferred Stock and
warrants to purchase additional shares of
Common Stock of the Company.
B.
Pursuant to that certain Master Investment Agreement dated July
22,
2005, (i) Quincy agreed to use its best
efforts to enter into and perform its
obligations under that certain Asset
Purchase Agreement, by and between Quincy
and Symbiotics, attached hereto as Exhibit
A (the "Symbiotics Purchase
Agreement") and (ii) concurrent with the
execution and delivery of the
Symbiotics Purchase Agreement, Quincy, the
Company and Symbiotics agreed to
enter into this Agreement. This Agreement
is the Assignment and Assumption
Agreement referred to in Sections 2.03(i).
and 8.06 of the Symbiotics Purchase
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and of the mutual
obligations herein contained, it is agreed
as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Quincy hereby assigns to the Company all of Quincy's
right, title and interest in, to and under
the Symbiotics Purchase Agreement and
the Collateral Agreements (as defined in
the Symbiotics Purchase Agreement) to
which Quincy is a party.
(b) The Company hereby accepts the foregoing assignment and
agrees to keep, perform and fulfill all of
the terms, covenants, conditions,
duties and obligations which are required
to be kept, performed and fulfilled by
Quincy under the Symbiotics Purchase
Agreement and the Collateral Agreements to
which Quincy is a party and which terms,
covenants, conditions, duties and
obligations are to be performed after the
date hereof.
2. ISSUANCE OF SECURITIES.
(a) Concurrent with the execution and delivery of this
Agreement, the Company has (i) issued to
Quincy, and caused its transfer agent
to deliver certificates to Quincy for,
21,232,715 shares of Common Stock and
(ii) issued and delivered to Quincy
warrants to purchase up to 7,000,000 shares
of Common Stock, in substantially the form
attached hereto as Exhibit B (the
"Warrants"), receipt of which shares and
Warrants hereby is acknowledged by
Quincy.
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(b) Quincy hereby represents and warrants to the Company that
all representations and warranties of
Quincy contained in Section 4 of the
Master Investment Agreement referred to in
Recital B are true and complete as
though made on and as of the date
hereof.
3. RELEASE.
(a) Except with respect to the Promissory Note dated of even
date herewith referred to in Section
1.04(a) of the Symbiotics Purchase
Agreement, with respect to the Guaranty of
Peter H. Pocklington dated of even
date herewith or with respect to claims
which may arise pursuant to the
intentional misconduct or fraud of Quincy,
Symbiotics hereby fully, forever and
unconditionally releases, exonerates,
waives, relinquishes, discharges, acquits,
relieves and covenants not to sue Quincy,
or any of its officers, directors,
employees or agents, from any and all
rights, claims, demands, debts,
obligations, liabilities, promises and
agreements arising from or in connection
with the Symbiotics Purchase Agreement.
(b) Each party hereto understands and agrees that this Section
3 extends to all claims of whatever nature
and kind, known and unknown,
suspected or unsuspected, and they each
expressly waive any and all rights under
Section 1542 of the Civil Code of the State
of California, which provides as
follows:
A general release does not extend to claims which the creditor
does
not know or suspect to exist in his favor at the time of
executing
the release, which if known by him must have materially affected
his
settlement with the debtor.
Each party hereto expressly waives and
releases any right or benefit which it
has or may have under Section 1542 of the
Civil Code of the State of California,
as well as under the provisions of all
comparable or similar statutes,
provisions of common law or other
decisional law of any and all states of the
United States, to the full extent that it
waives all such rights and benefits
pertaining to the matters released herein.
In connection with such waiver and
relinquishment, each party hereto
acknowledges that it may hereafter discover
claims presently unknown or unsuspected, or
facts in addition to or different
from those which it now knows or believes
to be true, with respect to the
matters released herein. Nevertheless, it
is the intention of each party hereto
through this Agreement, fully, finally and
forever to settle and release all
such matters, and all claims relative
thereto, which do now exist, may exist or
heretofore have existed among them in
connection with the matters set forth in
Section 3(a). In furtherance of such
intention, the release herein given shall
be and remain in effect as a full and
complete release of such matters
notwithstanding the discovery or existence
of any such additional different
claims or facts relative thereto, and each
party hereto hereby expressly assumes
the risk of any injury, loss or damage
which may arise from this waiver.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF NATURADE TO
SYMBIOTICS. Naturade hereby represents and
warrants to, and covenants with,
Symbiotics that:
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(a) Corporate Existence and Qualification. Naturade is a
corporation duly organized, validly
existing and in good standing under the laws
of the State of Delaware; has the corporate
power to own, manage, lease and hold
its properties and to carry on its business
as and where such properties are
presently located and such business is
presently conducted; and is duly
qualified to do business and is in good
standing as a foreign corporation in
each of the jurisdictions where the
character of its properties or the nature of
its business requires it to be so
qualified.
(b) Authority, Approval and Enforceability. This Agreement has
been duly executed and delivered by
Naturade, and Na
