Exhibit 10.1
EQUITY PURCHASE AGREEMENT
BY AND BETWEEN
STEVIA CORP.
AND
SOUTHRIDGE PARTNERS II, LP
Dated
January 26, 2012
THIS EQUITY PURCHASE AGREEMENT entered into as of the 26th day of January,
2012 (this "AGREEMENT"), by and between SOUTHRIDGE PARTNERS II, LP, Delaware
limited partnership ("INVESTOR"), and STEVIA CORP., a Nevada corporation (the
"COMPANY").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to Investor, from
time to time as provided herein, and Investor shall purchase, up to Twenty
Million Dollars ($20,000,000) of its Common Stock (as defined below); and
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 DEFINED TERMS as used in this Agreement, the following terms
shall have the following meanings specified or indicated (such meanings to be
equally applicable to both the singular and plural forms of the terms defined)
"AGREEMENT" shall have the meaning specified in the preamble hereof.
"BY-LAWS" shall have the meaning specified in Section 4.8.
"CERTIFICATE" shall have the meaning specified in Section 4.8.
"CLAIM NOTICE" shall have the meaning specified in Section 9.3(a).
"CLEARING DATE" shall be the date in which the Estimated Put Shares (as
defined in Section 2.2(a)) have been deposited into the Investor's brokerage
account and Investor's broker has confirmed with Investor that Investor may
execute trades of such Estimated Put Shares.
"CLOSING" shall mean one of the closings of a purchase and sale of shares
of Common Stock pursuant to Section 2.3.
"CLOSING CERTIFICATE" shall mean the closing certificate of the Company in
the form of Exhibit B hereto.
"CLOSING PRICE" shall mean the closing bid price for the Company's Common
Stock on the Principal Market on a Trading Day as reported by Bloomberg Finance
L.P.
"COMMITMENT PERIOD" shall mean the period commencing on the Effective Date,
and ending on the earlier of (i) the date on which Investor shall have purchased
Put Shares pursuant to this Agreement for an aggregate Purchase Price of the
Maximum Commitment Amount, or (ii) the date occurring thirty six (36) months
from the date of commencement of the Commitment Period.
"COMMON STOCK" shall mean the Company's common stock, $0.001 par value per
share, and any shares of any other class of common stock whether now or
hereafter authorized, having the right to participate in the distribution of
dividends (as and when declared) and assets (upon liquidation of the Company).
"COMMON STOCK EQUIVALENTS" shall mean any securities that are convertible
into or exchangeable for Common Stock or any options or other rights to
subscribe for or purchase Common Stock or any such convertible or exchangeable
securities.
"COMPANY" shall have the meaning specified in the preamble to this
Agreement.
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"CONDITION SATISFACTION DATE" shall have the meaning specified in Section
7.2.
"DAMAGES" shall mean any loss, claim, damage, liability, cost and expense
(including, without limitation, reasonable attorneys' fees and disbursements and
costs and expenses of expert witnesses and investigation).
"DISPUTE PERIOD" shall have the meaning specified in Section 9.3(a).
"DOLLAR VOLUME" shall mean the product of (a) the Closing Price multiplied
by (b) the trading volume on the Principal Market on a Trading Day.
"DTC" shall have the meaning specified in Section 2.3.
"DWAC" shall have the meaning specified in Section 2.3.
"EFFECTIVE DATE" shall mean the Subscription Date.
"ESTIMATED PUT SHARES" shall have the meaning specified in Section 2.2(a)
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder.
"FAST" shall have the meaning specified in Section 2.3.
"FINRA" shall mean the Financial Industry Regulatory Authority, Inc.
"FLOOR PRICE" shall have the meaning specified in Section 2.1(c).
"INDEMNIFIED PARTY" shall have the meaning specified in Section 9.3(a).
"INDEMNIFYING PARTY" shall have the meaning specified in Section 9.3(a).
"INDEMNITY NOTICE" shall have the meaning specified in Section 9.3(b).
"INVESTMENT AMOUNT" shall mean the dollar amount to be invested by Investor
to purchase Put Shares with respect to any Put as notified by the Company to
Investor in accordance with Section 2.2.
"INVESTOR" shall have the meaning specified in the preamble to this
Agreement.
"LEGEND" shall have the meaning specified in Section 8.1.
"MARKET PRICE" shall mean the lowest Closing Price during the Valuation
Period.
"MATERIAL ADVERSE EFFECT" shall mean any effect on the business,
operations, properties, or financial condition of the Company that is material
and adverse to the Company and/or any condition, circumstance, or situation that
would prohibit or otherwise materially interfere with the ability of the Company
to enter into and perform its obligations under any of this Agreement.
"MAXIMUM COMMITMENT AMOUNT" shall mean Twenty Million Dollars
($20,000,000).
"MAXIMUM PUT AMOUNT" shall mean the lesser of (i) Five Hundred Thousand
Dollars ($500,000), or (ii) Five Hundred percent (500%) of the average of the
Dollar Volume for the ten (10) Trading Days immediately preceding the Put Date.
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"NEW PRICE" shall have the meaning specified in Section 2.6.
"OLD PRICE" shall have the meaning specified in Section 2.6.
"PAR VALUE PAYMENT" shall have the meaning specified in Section 2.2(a)
"PERSON" shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"PRINCIPAL MARKET" shall mean any of the national exchanges (i.e. NYSE,
NYSE AMEX, Nasdaq), the OTC Bulletin Board, or other principal exchange which is
at the time the principal trading exchange or market for the Common Stock.
"PURCHASE PRICE" shall mean 93% of the Market Price on such date on which
the Purchase Price is calculated in accordance with the terms and conditions of
this Agreement.
"PUT" shall mean the right of the Company to require the Investor to
purchase shares of Common Stock, subject to the terms and conditions of this
Agreement.
"PUT DATE" shall mean any Trading Day during the Commitment Period that a
Put Notice is deemed delivered pursuant to Section 2.2(b).
"PUT NOTICE" shall mean a written notice, substantially in the form of
Exhibit A hereto, to Investor setting forth the Investment Amount with respect
to which the Company intends to require Investor to purchase shares of Common
Stock pursuant to the terms of this Agreement.
"PUT SHARES" shall mean all shares of Common Stock issued or issuable
pursuant to a Put that has been exercised or may be exercised in accordance with
the terms and conditions of this Agreement.
"REGISTERED SECURITIES" shall mean the (a) Put Shares, and (b) any
securities issued or issuable with respect to any of the foregoing by way of
exchange, stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise. As to any particular Registered Securities, once issued such
securities shall cease to be Registrable Securities when (i) a Registration
Statement has been declared effective by the SEC and such Registrable Securities
have been disposed of pursuant to a Registration Statement, (ii) such
Registrable Securities have been sold under circumstances under which all of the
applicable conditions of Rule 144 are met, (iii) such time as such Registrable
Securities have been otherwise transferred to holders who may trade such shares
without restriction under the Securities Act or (iv) in the opinion of counsel
to the Company, which counsel shall be reasonably acceptable to Investor, such
Registrable Securities may be sold without registration under the Securities Act
or the need for an exemption from any such registration requirements and without
any time, volume or manner limitations pursuant to Rule 144(b)(i) (or any
similar provision then in effect) under the Securities Act.
"REGISTRABLE SECURITIES" shall have the meaning set forth in the
Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement, dated as of the date hereof, between the Company and Investor.
"REGISTRATION STATEMENT" shall mean the Company's effective registration
statement on file with the SEC, and any follow up registration statement or
amendment thereto.
"REGULATION D" shall mean Regulation D promulgated under the Securities
Act.
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"RULE 144" shall mean Rule 144 under the Securities Act or any similar
provision then in force under the Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall have the meaning specified in the recitals of this
Agreement.
"SEC DOCUMENTS" shall mean, as of a particular date, all reports and other
documents filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the Company's then most recently completed and
reported fiscal year as of the time in question (provided that if the date in
question is within ninety days of the beginning of the Company's fiscal year,
the term shall include all documents filed since the beginning of the preceding
fiscal year).
"SHORT SALES" shall mean all "short sales" as defined in Rule 200 of
Regulation SHO under the Exchange Act (but shall not be deemed to include the
location and/or reservation of borrowable shares of Common Stock).
"SUBSCRIPTION DATE" shall mean the date on which this Agreement is executed
and delivered by the Company and Investor.
"THIRD PARTY CLAIM" shall have the meaning specified in Section 9.3(a).
"TRADING DAY" shall mean a day on which the Principal Market shall be open
for business.
"TRANSACTION DOCUMENTS" shall mean this Agreement and the Registration
Rights Agreement.
"TRANSFER AGENT" shall mean the transfer agent for the Common Stock (and to
any substitute or replacement transfer agent for the Common Stock upon the
Company's appointment of any such substitute or replacement transfer agent).
"UNDERWRITER" shall mean any underwriter participating in any disposition
of the Registered Securities on behalf of Investor pursuant to the Registration
Statement.
"VALUATION EVENT" shall mean an event in which the Company at any time
during a Valuation Period takes any of the following actions:
(a) subdivides or combines the Common Stock;
(b) pays a dividend in shares of Common Stock or makes any other
distribution of shares of Common Stock, except for dividends paid with respect
to any series of preferred stock authorized by the Company, whether existing now
or in the future;
(c) issues any options or other rights to subscribe for or purchase
shares of Common Stock other than pursuant to this Agreement and the price per
share for which shares of Common Stock may at any time thereafter be issuable
pursuant to such options or other rights shall be less than the Closing Price in
effect immediately prior to such issuance;
(d) issues any securities convertible into or exchangeable for shares
of Common Stock and the consideration per share for which shares of Common Stock
may at any time thereafter be issuable pursuant to the terms of such convertible
or exchangeable securities shall be less than the Closing Price in effect
immediately prior to such issuance;
(e) issues shares of Common Stock otherwise than as provided in the
foregoing subsections (a) through (d), at a price per share less, or for other
consideration lower, than the Closing Price in effect immediately prior to such
issuance, or without consideration; or
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(f) makes a distribution of its assets or evidences of indebtedness to
the holders of Common Stock as a dividend in liquidation or by way of return of
capital or other than as a dividend payable out of earnings or surplus legally
available for dividends under applicable law or any distribution to such holders
made in respect of the sale of all or substantially all of the Company's assets
(other than under the circumstances provided for in the foregoing subsections
(a) through (e).
"VALUATION PERIOD" shall mean the period of five (5) Trading Days
immediately following the Clearing Date associated with the applicable Put
Notice during which the Purchase Price of the Common Stock is valued; provided,
however, that if a Valuation Event occurs during any Valuation Period, a new
Valuation Period shall begin on the Trading Day immediately after the occurrence
of such Valuation Event and end on the fifth (5th) Trading Day thereafter.
Investor shall notify the Company in writing of the occurrence of the Clearing
Date associated with a Put Notice. The Valuation Period shall begin the first
Trading Day following such written notice from Investor.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 INVESTMENTS.
(a) PUTS. Upon the terms and conditions set forth herein (including,
without limitation, the provisions of Article VII), on any Put Date the Company
may exercise a Put by the delivery of a Put Notice. The number of Put Shares
that Investor shall purchase pursuant to such Put shall be determined by
dividing the Investment Amount specified in the Put Notice by the Purchase Price
with respect to such Put Notice.
(b) RESTRICTED COMMON STOCK. As a condition for the execution of this
Agreement by the Investor, the Company shall issue to the Investor 35,000 shares
of restricted common stock (the "Restricted Shares") upon the signing of this
Agreement. The Restricted Shares shall have no registration rights.
(c) FLOOR PRICE. In the event that, during a Valuation Period, the
Closing Price on any Trading Day falls more than twenty percent (20%) below the
average of closing trade prices for the five (5) trading days immediately
preceding the date of the Company's Put Notice (a "Low Bid Price"), for each
such Trading Day, the parties shall have no right and shall be under no
obligation to purchase and sell one fifth (1/5th) of the Investment Amount
specified in the Put Notice, and the Investment Amount shall accordingly be
deemed reduced by such amount. In the event that during a Valuation Period there
exists a Low Bid Price for any two (2) Trading Days--not necessarily
consecutive--then the balance of each party's right and obligation to purchase
and sell the Investment Amount under such Put Notice shall terminate on such
second Trading Day ("Termination Day"), and the Investment Amount shall be
adjusted to include only one-fifth (1/5th) of the initial Investment Amount for
each Trading Day during the Valuation Period prior to the Termination Day that
the Closing Price equals or exceeds the Low Bid Price.
Section 2.2 MECHANICS.
(a) PUT NOTICE. At any time and from time to time during the
Commitment Period, the Company may deliver a Put Notice to Investor, subject to
the conditions set forth in Section 7.2; provided, however, that the Investment
Amount identified in the applicable Put Notice shall not be greater than the
Maximum Put Amount and, when taken together with any prior Put Notices, shall
not exceed the Maximum Commitment. The Company may deliver multiple Put Notices
to Investor at any time, even on the same Trading Day, without any requirement
that a certain amount of time elapse between the delivery of Put Notices or the
Closing thereof. On the Put Date the Company shall deliver to Investor's
brokerage account estimated put shares equal to the Investment Amount indicated
in the Put Notice divided by the Closing Price on the Trading Day immediately
preceding the Put Date, multiplied by one hundred twenty five percent (125%)
(the "Estimated Put Shares"). Simultaneous with the delivery of the Estimated
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Put Shares, Investor shall deliver payment by check or wire transfer to the
Company an amount equal to the par value of the Estimated Put Shares ("Par Value
Payment").
(b) DATE OF DELIVERY OF PUT NOTICE. A Put Notice shall be deemed
delivered on (i) the Trading Day it is received by facsimile or otherwise by
Investor if such notice is received on or prior to 12:00 noon New York time, or
(ii) the immediately succeeding Trading Day if it is received by facsimile or
otherwise after 12:00 noon New York time on a Trading Day or at anytime on a day
which is not a Trading Day.
Section 2.3 CLOSINGS. At the end of the Valuation Period the Purchase Price
shall be established and the number of Put Shares shall be determined for a
particular Put. If the number of Estimated Put Shares initially delivered to
Investor is greater than the Put Shares purchased by Investor pursuant to such
Put, then immediately after the Valuation Period that Investor shall deliver to
Company any excess Estimated Put Shares associated with such Put. If the number
of Estimated Put Shares delivered to Investor is less than the Put Shares
purchased by Investor pursuant to a Put, then immediately after the Valuation
Period the Company shall deliver to Investor the difference between the
Estimated Put Shares and the Put Shares issuable pursuant to such Put. The
Closing of a Put shall occur upon the date in which the settlement of trades of
the Put Shares associated with such Put Notice in the Investor's brokerage
account has been completed, whereby Investor shall deliver the Investment Amount
specified in the Put Notice, less the Par Value Payment, by wire transfer of
immediately available funds to an account designated by the Company. In lieu of
delivering physical certificates representing the Common Stock issuable in
accordance with clause (a) of this Section 2.3, and provided that the Transfer
Agent then is participating in the Depository Trust Company ("DTC") Fast
Automated Securities Transfer ("FAST") program, upon request of Investor, but
subject to the applicable provisions of Article VIII hereof, the Company shall
use its commercially reasonable efforts to cause the Transfer Agent to
electronically transmit, prior to the applicable Closing Date, the applicable
Put Shares by crediting the account of the Investor's prime broker with DTC
through its Deposit Withdrawal Agent Commission ("DWAC") system, and provide
proof satisfactory to the Investor of such delivery. In addition, on or prior to
such Closing Date, each of the Company and Investor shall deliver to each other
all documents, instruments and writings required to be delivered or reasonably
requested by either of them pursuant to this Agreement in order to implement and
effect the transactions contemplated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents and warrants to the Company that:
Section 3.1 INTENT. Investor is entering into this Agreement for its own
account and Investor has no present arrangement (whether or not legally binding)
at any time to sell the Registered Securities to or through any person or
entity; provided, however, that Investor reserves the right to dispose of the
Registered Securities at any time in accordance with federal and state
securities laws applicable to such disposition.
Section 3.2 NO LEGAL ADVICE FROM THE COMPANY. The Investor acknowledges
that it has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with its own legal counsel and investment and tax
advisors. The Investor is relying solely on such counsel and advisors and not on
any statements or representations of the Company or any of its representatives
or agents for legal, tax or investment advice with respect to this investment,
the transactions contemplated by this Agreement or the securities laws of any
jurisdiction.
Section 3.3 SOPHISTICATED INVESTOR. Investor is a sophisticated investor
(as described in Rule 506(b)(2)(ii) of Regulation D) and an accredited investor
(as defined in Rule 501 of Regulation D), and Investor has such experience in
business and financial matters that it is capable of evaluating the merits and
risks of an investment in the Registered Securities. Investor acknowledges that
an investment in the Registered Securities is speculative and involves a high
degree of risk.
Section 3.4 AUTHORITY. (a) Investor has the requisite power and authority
to enter into and perform its obligations under this Agreement and the
transactions contemplated hereby in accordance with its terms; (b) the execution
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and delivery of this Agreement and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action and no further consent or authorization of Investor or its partners is
required; and (c) this Agreement has been duly authorized and validly executed
and delivered by Investor and constitutes a valid and binding obligation of
Investor enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
Section 3.5 NOT AN AFFILIATE. Investor is not an officer, director or
"affiliate" (as that term is defined in Rule 405 of the Securities Act) of the
Company.
Section 3.6 ORGANIZATION AND STANDING. Investor is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Investor is duly qualified and in good standing in every jurisdiction in which
the nature of the business conducted or property owned by it makes such
qualification necessary, other than those in which the failure so to qualify
would not have a material adverse effect on Investor.
Section 3.7 ABSENCE OF CONFLICTS. The execution and delivery of this
Agreement and any other document or instrument contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, and compliance
with the requirements hereof and thereof, will not (a) violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on
Investor, (b) violate any provision of any indenture, instrument or agreement to
which Investor is a party or is subject, or by which Investor or any of its
assets is bound, or conflict with or constitute a material default thereunder,
(c) result in the creation or imposition of any lien pursuant to the terms of
any such indenture, instrument or agreement, or constitute a breach of any
fiduciary duty owed by Investor to any third party, or (d) require the approval
of any third-party (that has not been obtained) pursuant to any material
contract, instrument, agreement, relationship or legal obligation to which
Investor is subject or to which any of its assets, operations or management may
be subject.
Section 3.8 DISCLOSURE; ACCESS TO INFORMATION. Investor had an opportunity
to review copies of the SEC Documents filed on behalf of the Company and has had
access to all publicly available information with respect to the Company.
Section 3.9 MANNER OF SALE. At no time was Investor presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
Section 3.10. FINANCIAL CAPABILITY. Investor has the financial capacity and
the necessary capital to perform its obligations hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Investor that, except as disclosed
in the SEC Documents:
Section 4.1 ORGANIZATION OF THE COMPANY. The Company is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Nevada and has all requisite power and authority to own, lease and operate
its properties and to carry on its business as now being conducted. The Company
is duly qualified as a foreign corporation to do business and is in good
standing in every jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, other than those in
which the failure so to qualify would not have a Material Adverse Effect.
Section 4.2 AUTHORITY. (a) The Company has the requisite corporate power
and authority to enter into and perform its obligations under this Agreement and
to issue the Put Shares and Restricted Shares; (b) the execution and delivery of
this Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action and no further consent or authorization of the Company or its
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Board of Directors or stockholders is required; and (c) each of this Agreement
and has been duly executed and delivered by the Company and constitutes a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
Section 4.3 CAPITALIZATION. As of the date hereof, the authorized capital
stock of the Company consists of 100,000,000 shares of Common Stock, $0.001 par
value per share, of which 52,800,000 shares were issued and outstanding as of
October 31, 2011.
Except as otherwise disclosed in the SEC Documents and a convertible
promissory note in the principal amount of $250,000 issued by the Company on
January 16, 2012 to a foreign accredited investor, there are no outstanding
securities which are convertible into shares of Common Stock, whether such
conversion is currently exercisable or exercisable only upon some future date or
the occurrence of some event in the future.
All of the outstanding shares of Common Stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable.
Section 4.4 COMMON STOCK. The Company is in full compliance with all
reporting requirements of the Exchange Act, and to its knowledge the Company has
maintained all requirements for the continued listing or quotation of the Common
Stock, and such Common Stock is currently listed or quoted on the Principal
Market which is presently the OTC Markets, Inc. Pink Sheets.
Section 4.5 SEC DOCUMENTS. The Company may make available to Investor true
and complete copies of the SEC Documents (including, without limitation, proxy
information and solicitation materials). To the Company's knowledge, the Company
has not provided to Investor any information that, according to applicable law,
rule or regulation, should have been disclosed publicly prior to the date hereof
by the Company, but which has not been so disclosed. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the Exchange Act, and other federal laws, rules and regulations applicable to
such SEC Documents, and none of the SEC Documents contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply as to form and
substance in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements) and fairly present in all material
respects the financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
Section 4.6 VALID ISSUANCES. When issued and paid for as herein provided,
the Put Shares and the Restricted Shares shall be duly and validly issued, fully
paid, and non-assessable. Neither the sales of the Put Shares or the Restricted
Shares pursuant to this Agreement nor the Company's performance of its
obligations hereunder shall (a) result in the creation or imposition of any
liens, charges, claims or other encumbrances upon the Put Shares or Restricted
Shares, or any of the assets of the Company, or (b) entitle the holders of
outstanding shares of Common Stock to preemptive or other rights to subscribe to
or acquire the Common Stock or other securities of the Company. The Put Shares
and Restricted Shares shall not subject Investor to personal liability, in
excess of the subscription price by reason of the ownership thereof.
Section 4.7 NO CONFLICTS. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby, including without limitation the issuance of the Put Shares
and the Restricted Shares, do not and will not (a) result in a violation of the
Certificate or By-Laws or (b) conflict with, or constitute a material default
(or an event that with notice or lapse of time or both would become a material
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default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, indenture, instrument
or any "lock-up" or similar provision of any underwriting or similar agreement
to which the Company is a party, or (c) result in a violation of any federal,
state or local law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations) applicable to the Company or
by which any property or asset of the Company is bound or affected (except for
such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have a Material
Adverse Effect) nor is the Company otherwise in violation of, conflict with or
in default under any of the foregoing. The business of the Company is not being
conducted in violation of any law, ordinance or regulation of any governmental
entity, except for possible violations that either singly or in the aggregate do
not and will not have a Material Adverse Effect. The Company is not required
under federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Common Stock in
accordance with the terms hereof (other than any SEC, FINRA or state securities
filings that may be required to be made by the Company subsequent to any
Closing, any registration statement that may be filed pursuant hereto); provided
that, for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of Investor herein.
Section 4.8 NO MATERIAL ADVERSE CHANGE. Since September 30, 2011 no event
has occurred that would have a Material Adverse Effect on the Company, except as
disclosed in the SEC Documents.
Section 4.9 LITIGATION AND OTHER PROCEEDINGS. Except as may be disclosed in
the SEC Documents, there are no lawsuits or proceedings pending or to the
knowledge of the Company threatened, against the Company, nor has the Company
received any written or oral notice of any such action, suit, proceeding or
investigation, which would have a Material Adverse Effect. Except as may be
disclosed in the SEC Documents, no judgment, order, writ, injunction or decree
or award has been issued by or, so far as is known by the Company, requested of
any court, arbitrator or governmental agency which would have a Material Adverse
Effect.
Section 4.10 DILUTION. The number of shares of Common Stock issuable as Put
Shares may increase substantially in certain circumstances, including, but not
necessarily limited to, the circumstance wherein the trading price of the Common
Stock declines during the period between the Effective Date and the end of the
Commitment Period. The Company's executive officers and directors have studied
and fully understand the nature of the transactions contemplated by this
Agreement and recognize that they have a potential dilutive effect. The board of
directors of the Company has concluded in its good faith business judgment that
such issuance is in the best interests of the Company. The Company specifically
acknowledges that, subject to Section 2.2(c), its obligation to issue the Put
Shares is binding upon the Company and enforceable regardless of the dilution
such issuance may have on the ownership interests of other shareholders of the
Company.
ARTICLE V
COVENANTS OF INVESTOR
Section 5.1 COMPLIANCE WITH LAW; TRADING IN SECURITIES. Investor's trading
activities with respect to shares of the Common Stock will be in compliance with
all applicable state and federal securities laws, rules and regulations and the
rules and regulations of FINRA and the Principal Market on which the Common
Stock is listed or quoted.
Section 5.2 SHORT SALES AND CONFIDENTIALITY. Neither Investor nor any
affiliate of the Investor acting on its behalf or pursuant to any understanding
with it will execute any Short Sales during the period from the date hereof to
the end of the Commitment Period. For the purposes hereof, and in accordance
with Regulation SHO, the sale after delivery of a Put Notice of such number of
shares of Common Stock reasonably expected to be purchased under a Put Notice
shall not be deemed a Short Sale.
Other than to other Persons party to this Agreement, Investor has
maintained the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction).
9
ARTICLE VI
COVENANTS OF THE COMPANY
Section 6.1 RESERVATION OF COMMON STOCK. The Company will, from time to
time as needed in advance of a Closing Date, reserve and keep available until
the consummation of such Closing, free of preemptive rights sufficient shares of
Common Stock for the purpose of enabling the Company to satisfy its obligation
to issue the Put Shares to be issued in connection therewith. The number of
shares so reserved from time to time, as theretofore increased or reduced as
hereinafter provided, may be reduced by the number of shares actually delivered
hereunder.
Section 6.2 LISTING OF COMMON STOCK. If the Company applies to have the
Common Stock traded on any other Principal Market, it shall include in such
application the Put Shares, and shall take such other action as is necessary or
desirable in the reasonable opinion of Investor to cause the Common Stock to be
listed on such other Principal Market as promptly as possible. The Company shall
use its commercially reasonable efforts to continue the listing and trading of
the Common Stock on the Principal Market (including, without limitation,
maintaining sufficient net tangible assets) and will comply in all respects with
the Company's reporting, filing and other obligations under the bylaws or rules
of the FINRA and the Principal Market.
Section 6.3 CERTAIN AGREEMENTS. So long as this Agreement remains in
effect, the Company covenants and agrees that it will not, without the prior
written consent of the Investor, enter into any other equity line of credit
agreement with a third party during the Commitment Period having terms and
conditions substantially comparable to this Agreement. For the avoidance of
doubt, nothing contained in the Transaction Documents shall restrict, or require
the Investor's consent for, any agreement providing for the issuance or
distribution of (or the issuance or distribution of) any equity securities
pursuant to any agreement or arrangement that is not commonly understood to be
an "equity line of credit."
ARTICLE VII
CONDITIONS TO DELIVERY OF
PUT NOTICES AND CONDITIONS TO CLOSING
Section 7.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO ISSUE
AND SELL COMMON STOCK. The obligation hereunder of the Company to issue and sell
the Put Shares to Investor incident to each Closing is subject to the
satisfaction, at or before each such Closing, of each of the conditions set
forth below.
(a) ACCURACY OF INVESTOR'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Investor shall be true and correct in all
material respects as of the date of this Agreement and as of the date of each
such Closing as though made at each such time except for changes which would not
have a Material Adverse Effect.
(b) PERFORMANCE BY INVESTOR. Investor shall have performed, satisfied
and complied in all respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by
Investor at or prior to such Closing.
(c) Principal Market Regulation. The Company shall not issue any Put
Shares, or Restricted Shares, and the Investor shall not have the right to
receive any Put Shares or Restricted Shares, if the issuance of such shares
would exceed the aggregate number of shares of Common Stock which the Company
may issue without breaching the Company's obligations under the rules or
regulations of the Principal Market (the "Exchange Cap"), except that such
limitation shall not apply in the event the Company obtains the approval of its
stockholders if required by the applicable rules of the Principal Market for
issuances of Common Stock in excess of the Exchange Cap. For the avoidance of
doubt, the Company may, but shall be under no obligation to, obtain the approval
of its stockholders of the transactions contemplated by this Agreement.
10
Section 7.2 CONDITIONS PRECEDENT TO THE RIGHT OF THE COMPANY TO DELIVER A
PUT NOTICE AND THE OBLIGATION OF INVESTOR TO PURCHASE PUT SHARES. The right of
the Company to deliver a Put Notice and the obligation of Investor hereunder to
acquire and pay for the Put Shares incident to a Closing is subject to the
satisfaction, on (i) the date of delivery of such Put Notice and (ii) the
applicable Closing Date (each a "CONDITION SATISFACTION DATE"), of each of the
following conditions:
(a) EFFECTIVE REGISTRATION STATEMENT. The Registration Statement, and
any amendment or supplement thereto, shall remain effective for the sale by
Investor of the Registered Securities subject to such Put Notice, and such
Registration Statement shall remain effective on each Condition Satisfaction
Date and (i) neither the Company nor Investor shall have received notice that
the SEC has issued or intends to issue a stop order with respect to such
Registration Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of such Registration Statement, either temporarily or permanently,
or intends or has threatened to do so (unless the SEC's concerns have been
addressed and Investor is reasonably satisfied that the SEC no longer is
considering or intends to take such action), and (ii) no other suspension of the
use or withdrawal of the effectiveness of such Registration Statement or related
prospectus shall exist.
(b) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company shall be true and correct in all
material respects as of each Condition Satisfaction Date as though made at each
such time (except for representations and warranties specifically made as of a
particular date) with respect to all periods, and as to all events and
circumstances occurring or existing to and including each Condition Satisfaction
Date, except for any conditions which have temporarily caused any
representations or warranties herein to be incorrect and which have been
corrected with no continuing impairment to the Company or Investor.
(c) PERFORMANCE BY THE COMPANY. The Company shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to each Condition Satisfaction Date.
(d) NO INJUNCTION. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
adopted by any court or governmental authority of competent jurisdiction that
prohibits or directly and materially adversely affects any of the transactions
contemplated by this Agreement, and no proceeding shall have been commenced that
may have the effect of prohibiting or materially adversely affecting any of the
transactions contemplated by this Agreement.
(e) ADVERSE CHANGES. Since the date of filing of the Company's most
recent SEC Document, no event that had or is reasonably likely to have a
Material Adverse Effect has occurred.
(f) NO SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The
trading of the Common Stock shall not have been suspended by the SEC, the
Principal Market or the FINRA and the Common Stock shall have been approved for
listing or quotation on and shall not have been delisted from the Principal
Market.
(g) [INTENTIONALLY OMITTED]
(h) TEN PERCENT LIMITATION. On each Closing Date, the number of Put
Shares then to be purchased by Investor shall not exceed the number of such
shares that, when aggregated with all other shares of Common Stock then owned by
Investor beneficially or deemed beneficially owned by Investor, would result in
Investor owning more than 9.99% of all of such Common Stock as would be
outstanding on such Closing Date, as determined in accordance with Section 16 of
the Exchange Act and the regulations promulgated thereunder. For purposes of
this Section, in the event that the amount of Common Stock outstanding as
determined in accordance with Section 16 of the Exchange Act and the regulations
promulgated thereunder is greater on a Closing Date than on the date upon which
the Put Notice associated with such Closing Date is given, the amount of Common
Stock outstanding on such Closing Date shall govern for purposes of determining
11
whether Investor, when aggregating all purchases of Common Stock made pursuant
to this Agreement, would own more than 9.99% of the Common Stock following such
Closing Date.
(i) PRINCIPAL MARKET REGULATION. The Company shall not issue any Put
Shares or Restricted Shares, and the Investor shall not have the right to
receive any Put Shares or Restricted Shares, if the issuance of such shares
would exceed the Exchange Cap, except that such limitation shall not apply in
the event the Company obtains the approval of its stockholders if required by
the applicable rules of the Principal Market for issuances of Common Stock in
excess of the Exchange Cap. For the avoidance of doubt, the Company may, but
shall be under no obligation to, obtain the approval of its stockholders of the
transactions contemplated by this Agreement.
(j) NO KNOWLEDGE. The Company shall have no knowledge of any event
more likely than not to have the effect of causing such Registration Statement
to be suspended or otherwise ineffective (which event is more likely than not to
occur within the fifteen (15) Trading Days following the Trading Day on which
such Put Notice is deemed delivered).
(k) NO VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of
shares of Common Stock with respect to the applicable Closing, if any, shall not
violate the shareholder approval requirements of the Principal Market.
(l) NO VALUATION EVENT. No Valuation Event shall have occurred since
the Put Date.
(m) OTHER. On each Condition Satisfaction Date, Investor shall have
received a certificate in substantially the form and substance of Exhibit B
hereto, executed by an executive officer of the Company and to the effect that
all the conditions to such Closing shall have been satisfied as at the date of
each such certificate.
ARTICLE VIII
LEGENDS
Section 8.1 NO STOCK LEGEND OR STOCK TRANSFER RESTRICTIONS. No legend shall
be placed on the share certificates representing the Put Shares.
Section 8.2 INVESTOR'S COMPLIANCE. Nothing in this Article VIII shall
affect in any way Investor's obligations under any agreement to comply with all
applicable securities laws upon the sale of the Common Stock.
ARTICLE IX
NOTICES; INDEMNIFICATION
Section 9.1 NOTICES. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (a) personally served, (b)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (c) delivered by reputable air courier service with charges
prepaid, or (d) transmitted by hand delivery, telegram, facsimile, or email as a
PDF, addressed as set forth below or to such other address as such party shall
have specified most recently by written notice given in accordance herewith. Any
notice or other communication required or permitted to be given hereunder shall
be deemed effective (i) upon hand delivery or delivery by facsimile, with
accurate confirmation generated by the transmitting facsimile machine, or email
as a PDF, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (ii) on the second business day following the date of mailing by express
courier service or on the fifth business day after deposited in the mail, in
each case, fully prepaid, addressed to such address, or upon actual receipt of
such mailing, whichever shall first occur.
12
The addresses for such communications shall be:
If to the Company:
Stevia Corp.
7117 US 31 S.
Indianapolis, Indiana 46227
Attn: George Blankenbaker
President
Tel: 888-250-2566
Email: george@stevia.co
With a copy to:
Greenberg Traurig LLP
1201 K Street Suite 1100
Sacramento, California 95814
Attn: Mark C Lee
Tel: 916-442-1111
Fax: 916-448-1709
If to Investor:
Southridge Partners II, LP
90 Grove Street
Ridgefield, Connecticut 06877
Tel: 203-431-8300
Fax: 203-431-8301
Email: info@southridgellc.com
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 9.1 by giving at least ten (10) days' prior
written notice of such changed address or facsimile number to the other party
hereto.
Section 9.2 INDEMNIFICATION. Each party (an "Indemnifying Party") agrees to
indemnify and hold harmless the other party along with its officers, directors,
employees, and authorized agents, and each Person or entity, if any, who
controls such party within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (an "Indemnified Party") from and against any
Damages, joint or several, and any action in respect thereof to which the
Indemnified Party becomes subject to, resulting from, arising out of or relating
to any misrepresentation, breach of warranty or nonfulfillment of or failure to
perform any covenant or agreement on the part of Indemnifying Party contained in
this Agreement, as such Damages are incurred, except to the extent such Damages
result primarily from Indemnified Party's failure to perform any covenant or
agreement contained in this Agreement or Indemnified Party's negligence,
recklessness or bad faith in performing its obligations under this Agreement.
Section 9.3 METHOD OF ASSERTING INDEMNIFICATION CLAIMS. All claims for
indemnification by any Indemnified Party (as defined below) under Section 9.2
shall be asserted and resolved as follows:
(a) In the event any claim or demand in respect of which an
Indemnified Party might seek indemnity under Section 9.2 is asserted against or
sought to be collected from such Indemnified Party by a person other than a
party hereto or an affiliate thereof (a "THIRD PARTY CLAIM"), the Indemnified
Party shall deliver a written notification, enclosing a copy of all papers
served, if any, and specifying the nature of and basis for such Third Party
Claim and for the Indemnified Party's claim for indemnification that is being
asserted under any provision of Section 9.2 against an Indemnifying Party,
together with the amount or, if not then reasonably ascertainable, the estimated
amount, determined in good faith, of such Third Party Claim (a "CLAIM NOTICE")
with reasonable promptness to the Indemnifying Party. If the Indemnified Party
fails to provide the Claim Notice with reasonable promptness after the
Indemnified Party receives notice of such Third Party Claim, the Indemnifying
Party shall not be obligated to indemnify the Indemnified Party with respect to
such Third Party Claim to the extent that the Indemnifying Party's ability to
defend has been prejudiced by such failure of the Indemnified Party. The
Indemnifying Party shall notify the Indemnified Party as soon as practicable
13
within the period ending thirty (30) calendar days following receipt by the
Indemnifying Party of either a Claim Notice or an Indemnity Notice (as defined
below) (the "DISPUTE PERIOD") whether the Indemnifying Party disputes its
liability or the amount of its liability to the Indemnified Party under Section
9.2 and whether the Indemnifying Party desires, at its sole cost and expense, to
defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party
within the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this
Section 9.3(a), then the Indemnifying Party shall have the right to defend,
with counsel reasonably satisfactory to the Indemnified Party, at the sole
cost and expense of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings shall be vigorously and
diligently prosecuted by the Indemnifying Party to a final conclusion or
will be settled at the discretion of the Indemnifying Party (but only with
the consent of the Indemnified Party in the case of any settlement that
provides for any relief other than the payment of monetary damages or that
provides for the payment of monetary damages as to which the Indemnified
Party shall not be indemnified in full pursuant to Section 9.2). The
Indemnifying Party shall have full control of such defense and proceedings,
including any compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the Indemnified
Party, at any time prior to the Indemnifying Party's delivery of the notice
referred to in the first sentence of this clause (i), file any motion,
answer or other pleadings or take any other action that the Indemnified
Party reasonably believes to be necessary or appropriate to protect its
interests; and provided further, that if requested by the Indemnifying
Party, the Indemnified Party will, at the sole cost and expense of the
Indemnifying Party, provide reasonable cooperation to the Indemnifying
Party in contesting any Third Party Claim that the Indemnifying Party
elects to contest. The Indemnified Party may participate in, but not
control, any defense or settlement of any Third Party Claim controlled by
the Indemnifying Party pursuant to this clause (i), and except as provided
in the preceding sentence, the Indemnified Party shall bear its own costs
and expenses with respect to such participation. Notwithstanding the
foregoing, the Indemnified Party may takeover the control of the defense or
settlement of a Third Party Claim at any time if it irrevocably waives its
right to indemnity under Section 9.2 with respect to such Third Party
Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified
Party within the Dispute Period that the Indemnifying Party desires to
defend the Third Party Claim pursuant to Section 9.3(a), or if the
Indemnifying Party gives such notice but fails to prosecute vigorously and
diligently or settle the Third Party Claim, or if the Indemnifying Party
fails to give any notice whatsoever within the Dispute Period, then the
Indemnified Party shall have the right to defend, at the sole cost and
expense of the Indemnifying Party, the Third Party Claim by all appropriate
proceedings, which proceedings shall be prosecuted by the Indemnified Party
in a reasonable manner and in good faith or will be settled at the
discretion of the Indemnified Party(with the consent of the Indemnifying
Party, which consent will not be unreasonably withheld). The Indemnified
Party will have full control of such defense and proceedings, including any
compromise or settlement thereof; provided, however, that if requested by
the Indemnified Party, the Indemnifying Party will, at the sole cost and
expense of the Indemnifying Party, provide reasonable cooperation to the
Indemnified Party and its counsel in contesting any Third Party Claim which
the Indemnified Party is contesting. Notwithstanding the foregoing
provisions of this clause (ii), if the Indemnifying Party has notified the
Indemnified Party within the Dispute Period that the Indemnifying Party
disputes its liability or the amount of its liability hereunder to the
Indemnified Party with respect to such Third Party Claim and if such
dispute is resolved in favor of the Indemnifying Party in the manner
provided in clause (iii) below, the Indemnifying Party will not be required
to bear the costs and expenses of the Indemnified Party's defense pursuant
to this clause (ii) or of the Indemnifying Party's participation therein at
the Indemnified Party's request, and the Indemnified Party shall reimburse
the Indemnifying Party in full for all reasonable costs and expenses
incurred by the Indemnifying Party in connection with such litigation. The
Indemnifying Party may participate in, but not control, any defense or
14
settlement controlled by the Indemnified Party pursuant to this clause
(ii), and the Indemnifying Party shall bear its own costs and expenses with
respect to such participation.
(iii) If the Indemnifying Party notifies the Indemnified Party
that it does not dispute its liability or the amount of its liability to
the Indemnified Party with respect to the Third Party Claim under Section
9.2 or fails to notify the Indemnified Party within the Dispute Period
whether the Indemnifying Party disputes its liability or the amount of its
liability to the Indemnified Party with respect to such Third Party Claim,
the amount of Damages specified in the Claim Notice shall be conclusively
deemed a liability of the Indemnifying Party under Section 9.2 and the
Indemnifying Party shall pay the amount of such Damages to the Indemnified
Party on demand. If the Indemnifying Party has timely disputed its
liability or the amount of its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party shall proceed in good faith to
negotiate a resolution of such dispute; provided, however, that if the
dispute is not resolved within thirty (30) days after the Claim Notice, the
Indemnifying Party shall be entitled to institute such legal action as it
deems appropriate.
(b) In the event any Indemnified Party should have a claim under
Section 9.2 against the Indemnifying Party that does not involve a Third Party
Claim, the Indemnified Party shall deliver a written notification of a claim for
indemnity under Section 9.2 specifying the nature of and basis for such claim,
together with the amount or, if not then reasonably ascertainable, the estimated
amount, determined in good faith, of such claim (an "INDEMNITY NOTICE") with
reasonable promptness to the Indemnifying Party. The failure by any Indemnified
Party to give the Indemnity Notice shall not impair such party's rights
hereunder except to the extent that the Indemnifying Party demonstrates that it
has been irreparably prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim or the amount of the claim
described in such Indemnity Notice or fails to notify the Indemnified Party
within the Dispute Period whether the Indemnifying Party disputes the claim or
the amount of the claim described in such Indemnity Notice, the amount of
Damages specified in the Indemnity Notice will be conclusively deemed a
liability of the Indemnifying Party under Section 9.2 and the Indemnifying Party
shall pay the amount of such Damages to the Indemnified Party on demand. If the
Indemnifying Party has timely disputed its liability or the amount of its
liability with respect to such claim, the Indemnifying Party and the Indemnified
Party shall proceed in good faith to negotiate a resolution of such dispute;
provided, however, that if the dispute is not resolved within thirty (30) days
after the Claim Notice, the Indemnifying Party shall be entitled to institute
such legal action as it deems appropriate.
(c) The indemnity provisions contained herein shall be in addition to
(i) any cause of action or similar rights of the Indemnified Party against the
Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party
may be subject to.
ARTICLE X
MISCELLANEOUS
Section 10.1 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of New York without
regard to the principles of conflicts of law. Each of the Company and Investor
hereby submit to the exclusive jurisdiction of the United States Federal and
state courts located in New York with respect to any dispute arising under this
Agreement, the agreements entered into in connection herewith or the
transactions contemplated hereby or thereby.
Section 10.2 JURY TRIAL WAIVER. The Company and the Investor hereby waive a
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other in respect of any matter arising out of or in
connection with the Transaction Documents.
Section 10.3 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the Company and Investor and their respective successors. Neither
this Agreement nor any rights of Investor or the Company hereunder may be
assigned by either party to any other person.
Section 10.4 THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the Company and Investor and their respective successors, and is not
15
for the benefit of, nor may any provision hereof be enforced by, any other
person.
Section 10.5 TERMINATION. The Company may terminate this Agreement at any
time by written notice to the Investor. Additionally, this Agreement shall
terminate at the end of Commitment Period or as otherwise provided herein
(unless extended by the agreement of the Company and Investor); provided,
however, that the provisions of Articles V and VIII, and Sections 9.1, 9.2, 9.3
10.1, 10.2 and 10.4 shall survive the termination of this Agreement for a period
of eighteen (18) months.
Section 10.6 ENTIRE AGREEMENT, AMENDMENT; NO WAIVER. This Agreement and the
instruments referenced herein contain the entire understanding of the Company
and Investor with respect to the matters covered herein and therein and, except
as specifically set forth herein or therein, neither the Company nor Investor
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the party to be charged with enforcement.
Section 10.7 FEES AND EXPENSES. The Company agrees to pay its own expenses
and shall pay a fee to Investor in the amount of $25,000 in cash to cover its
expenses in connection with the preparation of this Agreement and performance of
Investor's obligations hereunder. The Company shall pay all stamp or other
similar taxes and duties levied in connection with issuance of the Put Shares
pursuant hereto.
Section 10.8 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the parties and
shall be deemed to be an original instrument which shall be enforceable against
the parties actually executing such counterparts and all of which together shall
constitute one and the same instrument. This Agreement may be delivered to the
other parties hereto by facsimile transmission or email of a copy of this
Agreement bearing the signature of the parties so delivering this Agreement.
Section 10.9 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that such severability shall be
ineffective if it materially changes the economic benefit of this Agreement to
any party.
Section 10.10 FURTHER ASSURANCES. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
Section 10.11 NO STRICT CONSTRUCTION. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
Section 10.12 EQUITABLE RELIEF. The Company recognizes that in the event
that it fails to perform, observe, or discharge any or all of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief to
Investor. The Company therefore agrees that Investor shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
Section 10.13 TITLE AND SUBTITLES. The titles and subtitles used in this
Agreement are used for the convenience of reference and are not to be considered
in construing or interpreting this Agreement.
Section 10.14 REPORTING ENTITY FOR THE COMMON STOCK. The reporting entity
relied upon for the determination of the Closing Price and the VWAP for the
Common Stock on any given Trading Day for the purposes of this Agreement shall
be Bloomberg Finance L.P. or any successor thereto. The written mutual consent
of Investor and the Company shall be required to employ any other reporting
entity.
Section 10.15 PUBLICITY. The Company and Investor shall consult with each
other in issuing any press releases or otherwise making public statements with
16
respect to the transactions contemplated hereby and no party shall issue any
such press release or otherwise make any such public statement without the prior
written consent of the other parties, which consent shall not be unreasonably
withheld or delayed, except that no prior consent shall be required if such
disclosure is required by law, in which such case the disclosing party shall
provide the other parties with prior notice of such public statement.
Notwithstanding the foregoing, the Company shall not publicly disclose the name
of Investor without the prior written consent of such Investor, except to the
extent required by law. Investor acknowledges that this Agreement and all or
part of the Transaction Documents may be deemed to be "material contracts" as
that term is defined by Item 601(b)(10) of Regulation S-K, and that the Company
may therefore be required to file such documents as exhibits to reports or
registration statements filed under the Securities Act or the Exchange Act.
Investor further agrees that the status of such documents and materials as
material contracts shall be determined solely by the Company, in consultation
with its counsel.
[SIGNATURES ON FOLLOWING PAGE]
17
[SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Equity Purchase
Agreement to be executed by the undersigned, thereunto duly authorized, as of
the date first set forth above.
SOUTHRIDGE PARTNERS II, LP
By: Southridge Advisors LLC
By: /s/ Stephen Hicks
-----------------------------------------
Name: Stephen Hicks
Title: Manager
STEVIA CORP.
By: /s/ George Blankenbaker
-----------------------------------------
Name: George Blankenbaker
Title: President
18
EXHIBITS
EXHIBIT A Put Notice
EXHIBIT B Closing Certificate
EXHIBIT A
FORM OF PUT NOTICE
TO: SOUTHRIDGE PARTNERS II, LP
We refer to the Equity Purchase Agreement dated ___________, 2012 (the
"Agreement") entered into by Stevia Corp. (the "Company") and you. Capitalized
terms defined in the Agreement shall, unless otherwise defined, have the same
meaning when used herein.
We hereby:
1. Give you notice that we require you to purchase $_________ (the "Investment
Amount") in Put Shares; and
2. Certify that, as of the date hereof, to the best of our knowledge, the
conditions set forth in Section 7.2 of the Agreement are satisfied.
Date: _____________, 20__
[_____________________________]
By: __________________________
Name:
Title: Chief Executive Officer
EXHIBIT B
FORM OF
CERTIFICATE OF THE CHIEF EXECUTIVE OFFICER
OF
STEVIA CORP.
Pursuant to Section 7.2(m) of that certain Equity Purchase Agreement dated
___________________2012 (the "Agreement") by and between the Company and
Southridge Partners II, LP (the "Investor"), the undersigned, in his capacity as
the Chief Executive Officer of Stevia Corp. (the "Company"), and not in his
individual capacity, hereby certifies, as of the date hereof (such date, the
"Condition Satisfaction Date"), the following:
1. The representations and warranties of the Company are true and correct
in all material respects as of the Condition Satisfaction Date as though made on
the Condition Satisfaction Date (except for representations and warranties
specifically made as of a particular date) with respect to all periods, and as
to all events and circumstances occurring or existing to and including the
Condition Satisfaction Date, except for any conditions which have temporarily
caused any representations or warranties of the Company set forth in the
Agreement to be incorrect and which have been corrected with no continuing
impairment to the Company or Investor; and
2. All of the Company's conditions to Closing set forth in Section 7.2 of
the Agreement have been satisfied as of the Condition Satisfaction Date.
Capitalized terms used herein shall have the meanings set forth in the
Agreement unless otherwise defined herein.
IN WITNESS WHEREOF, the undersigned has hereunto affixed his hand as of the
___ day of ____________, 20__.
By: ______________________________________
_______________Chief Executive Officer