Exhibit 10.1
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT (the "AGREEMENT") is dated as of April 2, 2014
(the "EFFECTIVE DATE"), and is entered into by and between YOPCP, LLC, a
Colorado limited liability company (the "COMPANY") and Stevia Corp, a Nevada
corporation ( "STEVIA").
RECITALS
WHEREAS, the Company desires to obtain funding from Stevia for a loan
amount of two hundred fifty thousand U.S. dollars ($250,000) through the
issuance of a senior secured convertible promissory note on the terms and
conditions as set forth in the form of Senior Secured Convertible Promissory
Note attached hereto as Exhibit A (the "NOTE").
NOW, THEREFORE, in consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth below, the parties hereto,
intending to be legally bound, hereby agree as follows:
AGREEMENT
1. THE NOTE
1.1 ISSUANCE AND RECEIPT OF NOTE. Subject to the terms of this Agreement,
in consideration for the purchase price of $250,000, the Company agrees to issue
to Stevia the Note, delivered by the Company to Stevia, with a principal amount
of $250,000 (the "LOAN AMOUNT"), such Note convertible into membership units of
the Company (the "CONVERSION UNITS") in the circumstances and on the terms set
forth in the Note.
1.2 CONVERSION RIGHT. Stevia shall have the right to convert the Note, at
its sole option, into Conversion Units in accordance with the terms and
conditions set forth in the Note.
2. THE CLOSING
2.1 CLOSING DATE. The closing of the issuance of the Note (the "CLOSING")
shall be held on the Effective Date or such other date as Stevia and the Company
mutually agree. The date of the Closing is referred to herein as the "CLOSING
DATE."
2.2 DELIVERY. At the Closing, (a) Stevia and the Company will deliver to
each other (i) this executed Agreement; (ii) the executed Security Agreement in
the form attached hereto as Exhibit B; and (iii) the executed Note, and (b)
Stevia shall deliver the Loan Amount either in cash, by check or by wire
transfer to an account designated by the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Stevia that except as set forth in
the disclosure schedules delivered by the Company to Stevia (the "Disclosure
Schedule") which have been provided to Stevia prior to the date hereof:
3.1 DEFINITIONS. As used herein, the following terms will have the
following meanings:
"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly through one or more intermediaries Controls, is
controlled by, or is under common control with, such Person.
"CONTROL" (including the terms "controlling," "controlled by" or "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
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"COMPANY'S KNOWLEDGE" means the actual knowledge of the executive officers,
managers or member managers (as defined in Rule 405 under the Securities Act of
1933, as amended (the "SECURITIES ACT")) of the Company, after due inquiry.
"ENVIRONMENTAL AND SAFETY REQUIREMENTS" means, whenever in effect, all
federal, state, local and foreign statutes, regulations, ordinances, codes and
other provisions having the force or effect of law, all judicial and
administrative orders and determinations, all contractual obligations and all
common law concerning public health and safety, worker health and safety, and
pollution or protection of the environment, including all those relating to the
presence, use, production, generation, handling, transportation, treatment,
storage, disposal, distribution, labeling, testing, processing, discharge,
release, threatened release, control or cleanup of any hazardous materials,
substances or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation.
"HAZARDOUS MATERIALS" means those substances, materials, and items, in any
form, whether solid, liquid, gaseous, semisolid, or any combination thereof,
whether waste materials, raw materials, chemicals, finished products,
byproducts, or any other materials or articles, which are regulated by or form
the basis of liability under any applicable Environmental and Safety
Requirements including: (a) wastes, materials, chemicals, and substances defined
as or included within the definition of "hazardous wastes," "hazardous
substances," "pollutants," "contaminants," "hazardous materials," "hazardous
chemicals," "extremely hazardous substances," "toxic substances," "toxic
pollutants," "hazardous pollutants," "solid wastes," "industrial wastes,"
"medical wastes" or words of similar meaning or regulatory effect, under any
applicable Environmental and Safety Requirements; and (b) asbestos in any form,
PCBs, transformers or other equipment containing PCBs, petroleum (including, but
not limited to, crude oil, petroleum-derived substances, gasoline, diesel fuel,
waste oils, or breakdown or decomposition products thereof, or any fraction
thereof), radioactive substances, radon gas, and urea formaldehyde.
"MATERIAL ADVERSE EFFECT" shall mean any fact, change, event, factor,
condition, circumstance, development or effect that, individually or in the
aggregate, has, or would reasonably be expected to have, a material adverse
effect on the business, assets, liabilities, condition (financial or otherwise),
prospects or results of operations of a Party.
"PERSON" means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint venture,
sole proprietorship, unincorporated organization, governmental authority or any
other form of entity not specifically listed herein.
"PROPRIETARY RIGHTS" means all of the following, in any jurisdiction
throughout the world: (i) patents, patent disclosures and inventions (whether or
not patentable and whether or not reduced to practice) and any reissue,
continuation, continuation-in-part, division, extension or reexamination
thereof; (ii) trademarks, service marks and trade dress, logos, slogans, and
other indicia of origin, and all translations, adaptations, derivations and
combinations of the foregoing, together with all goodwill associated therewith;
(iii) copyrights and copyrightable works; (iv) internet domain names; (v)
registrations, applications for registration, and renewals of any of the
foregoing; (vi) computer software (including source code and executable code),
and tools, systems, data, databases and documentation; (vii) trade secrets and
other confidential information, including ideas, recipes, know-how, processes
and techniques, research and development information, drawings, specifications,
designs, plans, proposals and technical data and manuals; and (viii) all copies
and tangible embodiments of any of the foregoing (in whatever form or medium).
"TAXES" shall mean all taxes of any kind, including, without limitation,
those on or measured by or referred to as income, gross receipts, sales, use, ad
valorem, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
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whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any governmental authority, domestic or foreign.
"TAX RETURN" shall mean any return, report or statement required to be
filed with any governmental authority with respect to Taxes.
3.2 ORGANIZATION AND STANDING. The Company is a limited liability company
duly organized, validly existing and in good standing under the laws of the
state of its organization and has all requisite organizational power and
authority to carry on its business as now conducted and proposed to be
conducted.
3.3 CORPORATE POWER AND AUTHORITY. The Company has all requisite legal and
corporate power to enter into, execute, deliver and perform its obligations
under this Agreement, the Security Agreement and the Note (collectively, the
"TRANSACTION DOCUMENTS"). The Transaction Documents are valid and binding
obligations of the Company, enforceable in accordance with their terms, except
to the extent that such enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyance or
other laws or court decisions relating to or affecting the rights of creditors
generally, and such enforcement may be limited by equitable principles of
general applicability.
3.4 CAPITALIZATION.
(a) The membership units of the Company (the "UNITS") consists of 1,000,000
Units issued and outstanding. All of the issued and outstanding Units have been
duly authorized, are validly issued, fully paid and non-assessable. The
capitalization structure of the Company is set forth on Schedule 3.4.
(b) All of the issued and outstanding Units were issued in compliance with
applicable laws.
(c) Except as set forth on Schedule 3.4, there are no outstanding or
authorized options, warrants, convertible securities or other rights,
agreements, arrangements or commitments of any character relating to the Units
of the Company or obligating the Company to issue or sell any Units or any other
interest in, the Company. The Company does not have outstanding or authorized
any unit appreciation, phantom stock, profit participation or similar rights.
There are no voting trusts, unit holder agreements, proxies or other agreements
or understandings in effect with respect to the voting or transfer of any of the
Units.
3.5 NO CONFLICTS. The execution, and delivery of the Transaction Documents
and the performance of the transactions contemplated by the Transaction
Documents, is not in conflict with and will not result in any material breach of
any terms, conditions or provisions of, or constitute a material default under
its corporate charter or other organizational document, as applicable, or any
indenture, lease, agreement, order, judgment or other instrument to which
Company is a party.
3.6 USE OF PROCEEDS. The net proceeds of the issuance of the Note hereunder
will be used by the Company for working capital and general corporate purposes.
3.7 MATERIAL CONTRACTS.
(a) Except as set forth on Schedule 3.7, the Company is not a party to any:
(i) agreements with customers, vendors, suppliers or service providers,
which resulted in payments to or by the Company in excess of $10,000 for any
twelve (12) month period;
(ii) agreement with any labor union or any bonus, pension, profit
sharing, retirement or any other form of deferred compensation plan or any unit
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purchase, phantom unit, unit appreciation, unit option or similar plan or
practice, whether formal or informal, or any severance agreement or arrangement;
(iii) agreement or indenture relating to indebtedness or to mortgaging,
pledging or otherwise placing a lien on the Company's assets or letter of credit
arrangements;
(iv) agreements with respect to the lending or investing of funds;
(v) inbound or outbound license or royalty agreements or other
contracts to with respect to any Proprietary Rights;
(vi) lease or agreement under which the Company is lessee of or holds
or operates any property, real or personal, owned by any other party for which
the annual rental exceeds $5,000;
(vii) lease or agreement under which the Company is lessor of or
permits any third party to hold or operate any property, real or personal, owned
or controlled by the Company;
(viii) other contract or group of related contracts with the same party
continuing over a period of more than six months from the date or dates thereof,
not terminable by the Company upon thirty (30) days' or less notice without
penalty or involving more than $10,000;
(ix) agreement which prohibits the Company from freely engaging in
business anywhere in the world or that otherwise restricts any activities of the
Company (including any co-existence or other agreement that restricts the use of
any Proprietary Rights and any agreements that include "most-favored-nations" or
similar provisions);
(x) agreement relating to the marketing, advertising or promotion of
the Company's products or services;
(xi) franchise or agency agreements;
(xii) agreements relating to ownership of or investments in any
business or enterprise, including investments in joint ventures and minority
equity investments;
(xiii) power of attorney;
(xiv) agreement with any governmental authority;
(xv) agreement not entered into in the ordinary course of business or
that is material to the business, financial condition, results of operations or
prospects of the Company which makes or receives annual payments of not less
than $10,000;
(xvi) agreement with any insider or any individual related by marriage
or adoption to any such insider or any entity in which any such Person owns any
beneficial interest; and
(xvii) other agreement material to it, whether or not entered into in
the ordinary course of business.
(b) Except as specifically disclosed on Schedule 3.7(b), (i) to the
Company's Knowledge, no Material Contract has been breached in any material
respect or cancelled by the other party thereto, (ii) the Company has performed
all obligations under each Material Contract required to be performed by the
Company and there is no material breach of or default under any such Material
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Contract or, to the Company's Knowledge, any event which, upon giving of notice
or lapse of time or both, would constitute such a breach or default, (iii) each
Material Contract is legal, valid, binding, enforceable and in full force and
effect against the Company and, to the Company's Knowledge, each other party
thereto, and will continue as such following the consummation of the
transactions contemplated hereby (subject to bankruptcy, moratorium and similar
laws and subject to the application of specific performance and other equitable
principles), and (iv) the Company has no present expectation or intention of not
fully performing any obligation pursuant to any Material Contract. For purposes
of this Agreement, "Material Contract" means any leases and each contract,
agreement or other commitment required to be listed on Schedule 3.7. The Company
has heretofore delivered to Stevia a true and correct copy of all written
Material Contracts (and a true and correct written description of all oral
Material Contracts), together with all amendments, exhibits, attachments,
waivers thereto.
3.8 ACCOUNTS RECEIVABLE. Except as set forth on Schedule 3.8, all accounts
and notes receivable reflected on the latest balance sheet of the Company (i)
arise from sales actually made or services actually performed by the Company,
(ii) are reflected on the Financial Statements (net of allowances for doubtful
accounts as reflected thereon), (iii) are or shall be valid receivables (subject
to no counterclaims or offsets) arising in the ordinary course of business, and
(iv) are or shall be current as shown on the latest balance sheet of the Company
and on the Financial Statements, as the case may be (net of allowances for
doubtful accounts as reflected thereon).
3.9 CUSTOMERS. Listed in Schedule 3.9 are the names and addresses of the
ten most significant customers (by revenue) of the Company's business for the
twelve-month period ended December 13, 2013 and the amount for which each such
customer was invoiced during such period. The Company has not received any
notice and has no reason to believe that any such top ten customer of the
Company's business has ceased, or will cease, to purchase the products of the
Company, or has substantially reduced, or will substantially reduce, the
purchase of such products at any time.
3.10 SUPPLIERS. Listed in Schedule 3.10 are the names and addresses of each
of the ten most significant suppliers of raw materials, supplies, merchandise
and other goods for the Company for the twelve-month period ended December 31,
2013 and the amount for which each such supplier invoiced the Company during
such period. The Company has not received any notice and has no any reason to
believe that any such supplier will not sell raw materials, supplies,
merchandise and other goods to the Company on terms and conditions substantially
similar to those used in its current sales to the Company, subject only to
general and customary price increases.
3.11 TAX MATTERS. Except as set forth on Schedule 3.11: (a) the Company has
timely filed all federal, state, local and foreign income, information and other
Tax Returns which are required to be filed; (b) all filed Tax Returns are true,
complete and accurate in all material respects and accurately reflect the
liabilities for Taxes of the Company; (c) all Taxes, assessments and other
governmental charges imposed upon the Company, or upon any of the assets, income
or franchises of the Company, have been timely paid or, if not yet payable, will
be timely paid; (d) there are no actual or proposed Tax deficiencies,
assessments or adjustments with respect to the business of the Company or any
assets or operations of the Company; (e) no claim has ever been made by an
authority in a jurisdiction where the Company does not file Tax Returns that the
Company is or may be subject to taxation by that jurisdiction; (f) the Company
has withheld and paid all Taxes required to have been withheld and paid in
connection with any amounts paid or owing to any employee, independent
contractor, creditor, member, or other third party, and all Forms W-2 and 1099
required with respect thereto have been properly completed and timely filed in
all material respects; (g) the Company does not have any liability for Taxes of
any Person under Reg. ss. 1.1502-6 (or any similar provision of state, local, or
foreign law), as a transferee or successor, by contract or otherwise; and (h) no
federal, state, local, or non-U.S. Tax audits or administrative or judicial Tax
proceedings are pending or being conducted with respect to the Company. Schedule
3.11 contains a list of all states, territories and jurisdictions (whether
foreign or domestic) in which the Company is required to file Tax Returns.
Schedule 3.11 contains a list of each agreement, contract, plan, or other
arrangement (whether or not written and whether or not an Employee Benefit Plan)
(collectively a "Plan") to which the Company is a party that is a "nonqualified
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deferred compensation plan" subject to Code ss.409A. Each Plan complies with the
requirements of Code ss.409A(a)(2), (3), and (4) and any IRS guidance issued
thereunder and no amounts under any such Plan are or have been subject to the
interest and additional tax set forth under Code ss.409A(a)(1)(B). The Company
does not have any actual or potential obligation to reimburse or otherwise
"gross-up" any Person for the interest or additional tax set forth under Code
ss.409A(a)(1)(B).
3.12 TITLE TO PROPERTIES. The Company has good and marketable title to all
real properties and all other properties and assets owned by it, in each case
free from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or currently planned to be
made thereof by them; and the Company holds any leased real or personal property
under valid and enforceable leases with no exceptions that would materially
interfere with the use made or currently planned to be made thereof by them
3.13 PROPRIETARY RIGHTS.
(a) The Company owns and possesses, solely and exclusively, all right,
title and interest in, to and under the Proprietary Rights, and has the valid
and enforceable right to use the Proprietary Rights used or held in the conduct
of the Company's business, free and clear of all liens.
(b) Schedule 3.13(b) sets forth a complete and correct list of all of the
following that are used in connection with the Company's business: (i) all
issued patents and pending patent applications; (ii) all registrations and
applications for registration of any copyrights; (iii) all trade names; (iv) all
registrations and applications for registration of any trademarks, and all
material unregistered trademarks; (v) all domain name registrations and (vi) all
licenses or similar agreements or arrangements to which the Company is a party,
either as licensee or licensor, with respect to any Proprietary Rights (other
than agreements pertaining to unmodified, commercially available, off-the-shelf
software with a replacement cost and/or annual license fee of less than $5,000)
(and with respect to each of the foregoing subsections, identifying the owner,
and if not the Company, the third party owner and licensor and the corresponding
license agreement pursuant to which such Proprietary Right is used).
(c) Except as set forth Schedule 3.13(c): (i) no claim contesting the
validity, enforceability, registrability, patentability, use or ownership of any
of the Proprietary Rights used in connection with the Company's business has
been made or is currently outstanding and, to the Company's Knowledge, none is
threatened; (ii) the conduct of the Company's business does not infringe,
misappropriate or otherwise conflict with, and has not infringed,
misappropriated, or otherwise conflicted with, the Proprietary Rights of any
third party and the Company has not received any written notices of, nor is the
Company aware of any facts which indicate a likelihood of, any claim of the
same; and (iii) to the Company's Knowledge, no third party is infringing,
misappropriating, or otherwise conflicting with, the Proprietary Rights used in
connection with the Company's business.
3.14 LITIGATION. There are no pending actions, suits or proceedings against
or affecting the Company, or any of its properties; and to the Company's
Knowledge, no such actions, suits or proceedings are threatened or contemplated.
Neither the Company, nor any manager, member manager or officer thereof, is or
since its inception has been the subject of any action involving a claim of
violation of or liability under federal or state securities laws or a claim of
breach of fiduciary duty. There has not been, and to the Company's Knowledge,
there is not pending or contemplated, any investigation by any regulatory body
involving the Company or any current or former manager, member manager or
officer of the Company.
3.15 FINANCIAL STATEMENTS. The Company has made available to Stevia true
and complete copies of the Company's audited financial statements for the years
ending December 31, 2013 and 2012 (the "FINANCIAL Statements"). To the Company's
Knowledge, the Financial Statements present fairly, in all material respects,
the consolidated financial position of the Company as of the dates shown and its
consolidated results of operations for the periods shown, and such Financial
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Statements have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis ("GAAP"). To the
Company's Knowledge, except as set forth in the Financial Statements, the
Company has not incurred any material liabilities, contingent or otherwise, that
are required by GAAP to be included in the Financial Statements, except those
incurred in the ordinary course of business, consistent (as to amount and
nature) with past practices since the date of such Financial Statements, none of
which, individually or in the aggregate, have had or could reasonably be
expected to have a Material Adverse Effect on the Company.
3.16 NO DIRECTED SELLING EFFORTS OR GENERAL SOLICITATION. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D
promulgated under the Securities Act) in connection with the offer or sale of
the Note.
3.17 NO INTEGRATED OFFERING. Neither the Company nor any of its Affiliates,
nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the
Company on Section 4(a)(2) for the exemption from registration for the
transactions contemplated hereby or would require registration of the Note under
the Securities Act.
3.18 DISCLOSURE. The Company has provided Stevia with all the information
that Stevia has requested for deciding whether to purchase the Note and all
information that the Company believes is reasonably necessary to enable Stevia
to make such decision. Neither this Agreement nor any other Transaction Document
nor any other statements or certificates made or delivered in connection
herewith or therewith contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements herein or therein not
misleading, in light of the circumstances in which they were made.
3.19 PRIVATE PLACEMENT. The offer and sale of the Note to Stevia as
contemplated hereby is exempt from the registration requirements of the
Securities Act.
3.20 TRANSACTIONS WITH AFFILIATES. None of the officers, managers or member
managers of the Company and, to the Company's Knowledge, none of the employees
of the Company is presently a party to any transaction with the Company (other
than as holders of options and/or warrants, and other than relating to services
as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, manager, member manager, or such employee or,
to the Company's Knowledge, any entity in which any officer, director or any
such employee has a substantial interest or is an officer, director, trustee or
partner.
3.21 COMPLIANCE WITH LAWS. The Company is not (i) subject to the terms or
provisions of any material judgment, decree, order, writ or injunction or (ii)
in violation of any terms or provisions of any laws, rules, or regulations,
except where such violations do not and are not likely to have a Material
Adverse Effect.
3.22 COMPLIANCE WITH CORPORATE INSTRUMENTS AND LAWS. The Company is not in
violation of any provisions of its Articles of Organization or operating
agreement as currently in effect. The Company is in compliance in all material
respects with all applicable laws, statutes, rules, and regulations of all
governmental and regulatory authorities which are applicable and the compliance
with which is material to the Company or its assets or business. All licenses,
franchises, permits and other governmental authorizations held by the Company
and which are material to its business are valid and sufficient in all respects
for the business presently carried on by the Company.
3.23 CONSENTS. No consent, approval, order or authorization of, or
designation, registration, declaration or filing with, any federal, state, local
or provincial or other governmental authority or other Person on the part of the
Company is required in connection with the valid execution and delivery of the
Transaction Documents, or the offer, or issuance of Note other than, if
required, filings or qualifications under applicable federal or state securities
laws.
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3.24 EMPLOYEE BENEFIT PLANS.
(a) Schedule 3.24(a) lists or describes each "employee benefit plan" (as
such term is defined in Section 3(3) of ERISA) maintained or contributed to by
(or required to be maintained or contributed to by) the Company on behalf of any
current or former employee of the Company or with respect to which the Company
has any liability, and each other plan, arrangement, policy or understanding
(whether written or oral) relating to retirement, compensation, deferred
compensation, bonus, phantom stock, unit appreciation or other equity incentive
compensation, severance, fringe benefits or any other employee benefits
maintained or contributed to by (or required to be maintained or contributed to
by) the Company for the benefit of any current or former employee of the Company
or with respect to which the Company has any liability. Each item listed or
required to be listed on Schedule 3.24(a) is referred to herein as an "EMPLOYEE
BENEFIT PLAN." The Company is not a participating or contributing employer in
any "multiemployer plan" (as defined in Section 3(37) of ERISA) nor has the
Company incurred any withdrawal liability with respect to any multiemployer plan
or any liability in connection with the termination or reorganization of any
multiemployer plan. No Employee Benefit Plan or other arrangement provides or
could require the Company to provide post-employment welfare benefits other than
as required under Section 4980B of the Internal Revenue Code of 1986, as amended
(the "CODE").
(b) Each Employee Benefit Plan that is intended to be qualified within the
meaning of Section 401(a) of the Code has received a determination letter to
that effect from the Internal Revenue Service (the "IRS"), and nothing has
occurred since the date of such letter that would prevent any such Employee
Benefit Plan from remaining so qualified. Except as set forth and described in
reasonable detail on Schedule 3.24(b), each Employee Benefit Plan and any
related trust, insurance contract or fund has been administered and maintained
in form and operation in all material respects in accordance with its respective
terms and the terms of any applicable collective bargaining agreements and in
compliance with all applicable laws and regulations, including ERISA and the
Code. Neither the Company, nor any fiduciary of or trustee to any Employee
Benefit Plan, has engaged in a "prohibited transaction" described in Section 406
of the ERISA or Section 4975 of the Code. All contributions, premiums or other
payments required to be made prior to the Closing Date with respect to any
Employee Benefit Plan have been made on a timely basis.
(c) Except as set forth and described in reasonable detail on Schedule
3.24(c), none of the Employee Benefit Plans obligates the Company to pay any
separation, severance, termination or similar benefit solely as a result of any
transaction contemplated by this Agreement or solely as a result of a change in
control or ownership within the meaning of Section 280G of the Code. No unfunded
liability exists under any Employee Benefit Plan.
(d) Except as set forth on Schedule 3.24(d), (i) no asset of the Company is
subject to any lien under ERISA or the Code; (ii) the Company has not incurred
any liability under Title IV of ERISA or to the Pension Benefit Guaranty
Corporation with respect to any "employee benefit plan" (as such term is defined
under Section 3(3) of ERISA) that has ever been maintained or contributed to by
the Company or any ERISA Affiliate; and (iii) there are no pending or, to the
Company's Knowledge threatened actions, suits, investigations or claims with
respect to any Employee Benefit Plan (other than routine claims for benefits)
which could result in any liability (other than liabilities relating to
threatened actions, suits, investigations or claims that are unknown) to the
Company (whether direct or indirect), and the Company does not have any
knowledge of any facts which could give rise to (or be expected to give rise to)
any such actions, suits, investigations or claims.
(e) With respect to each Employee Benefit Plan, the Company has furnished
to Stevia true and complete copies of (i) the plan documents, summary plan
descriptions and summaries of material modifications and other material employee
communications, (ii) the most recent determination letter received from the
Internal Revenue Service, (iii) the Form 5500 Annual Report (including all
schedules and other attachments) for the most recent three years, (iv) all
related trust agreements, insurance contracts or other funding agreements which
implement such plans and (v) all contracts relating to each such plan, including
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service provider agreements, insurance contracts, investment management
agreements and recordkeeping agreements.
3.25 EMPLOYEES.
(a) To the Company's Knowledge, except as set forth on Schedule 3.25(a), no
key employee and no group of employees of the Company has any plans to terminate
or modify his or her status as an employee of the Company. There are no claims,
actions, proceedings or investigations pending or, to the Company's Knowledge,
threatened against the Company with respect to or by any employee or former
employee of the Company. The Company has not experienced any strikes,
grievances, claims of unfair labor practices or other collective bargaining
disputes. The Company has not engaged in any unfair labor practices in violation
of applicable law. The Company has no knowledge of any organizational effort
presently made or threatened by or on behalf of any labor union with respect to
employees of the Company. To the Company's Knowledge, no employee of the Company
is currently or has ever been excluded from participation in the Medicare or
Medicaid programs pursuant to applicable laws or regulations.
(b) The Company has complied in all material respects with all applicable
laws relating to the employment or labor, including provisions thereof relating
to wages, hours, equal opportunity, fair labor standards, nondiscrimination,
workers compensation, collective bargaining and the payment of social security
and other taxes. The Company has paid to its employees and independent
contractors or have properly accrued all bonuses, commissions and all other
forms of incentive or deferred compensation that such employees or independent
contractors earned with respect to the 2013 calendar year. Other than as set
forth on Schedule 3.25(b), the Company has no obligations, commitments or is
subject to any arrangements pursuant to which the Company is or may become
obligated to pay any all bonuses, commissions and all other forms of incentive
or deferred compensation.
3.26 ENVIRONMENTAL AND SAFETY MATTERS.Except as set forth in Schedule 3.26:
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(a) The Company has at all times complied and is in compliance with all
applicable Environmental and Safety Requirements, including all applicable
Environmental and Safety Requirements related to the treatment, storage,
disposal, transportation, handling and release of Hazardous Materials.
(b) The Company has not received any written notice, report or other
information regarding any actual or alleged violation of Environmental and
Safety Requirements, or any liabilities or potential liabilities, including any
investigatory, remedial or corrective obligations, arising under Environmental
and Safety Requirements.
(c) To the Company's Knowledge, the Company has not treated, stored,
disposed of, arranged for or permitted the disposal of, transported, handled,
released, or exposed any Person to, any substance, including any Hazardous
Materials, or owned or operated any property or facility (and no such property
or facility is contaminated by any Hazardous Materials or other substance) so as
to give rise to any current or future liabilities, including any liability
(other than unknown liabilities) for response costs, corrective action costs,
personal injury, property damage, natural resources damages or attorney fees, or
any investigative, corrective or remedial obligations, pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, or the Solid Waste Disposal Act, as amended, or any other applicable
Environmental and Safety Requirements.
(d) The Company has not assumed, undertaken or otherwise become subject to
any liability (other than unknown liabilities), including any obligation for
corrective or remedial action, of any other Person relating to Environmental and
Safety Requirements.
9
(e) The Company has furnished to Stevia all environmental audits, reports
and other material environmental documents, if any, relating to the Company and
its Affiliates' or its predecessors' past or current properties, facilities or
operations which are in its possession or under its reasonable control.
3.27 INSURANCE. The Company has in place policies of insurance in amounts
and scope of coverage as set forth on Schedule 3.27. Each such policy is in full
force and effect and all premiums are currently paid in accordance with the
terms of such policy or accrued. The Company has not received any notice that
any policy will be cancelled or will not be renewed. The insurance coverage for
the Company's business is customary for businesses of similar size engaged in
similar lines of business.
3.28 WARRANTY MATTERS. Except as disclosed on Schedule 3.28, there are no
existing or, to the Company's Knowledge, threatened product liability, warranty,
failure to adequately warn or any other similar claims against the Company
primarily relating to the Company's products that are inconsistent with the
amounts generally shown for warranty liability reserve in the Financial
Statements.
4. REPRESENTATIONS AND WARRANTIES OF STEVIA
Stevia represents to the Company as follows:
4.1 ORGANIZATION AND STANDING. Stevia is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation and has all requisite corporate power and authority to carry on
its business as now conducted and proposed to be conducted.
4.2 CORPORATE POWER AND AUTHORITY. Stevia has all requisite legal and
corporate power to enter into, execute, deliver and perform its obligations
under this Agreement, the Security Agreement and the Note (collectively, the
"TRANSACTION DOCUMENTS"). The Transaction Documents are valid and binding
obligations of Stevia, enforceable in accordance with their terms, except to the
extent that such enforcement may be subject to applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyance or
other laws or court decisions relating to or affecting the rights of creditors
generally, and such enforcement may be limited by equitable principles of
general applicability.
4.3 LITIGATION. There are no pending actions, suits or proceedings against
or affecting Stevia, or any of its properties; and to the actual knowledge of
the executive officers and directors of Stevia, after due inquiry ("STEVIA'S
KNOWLEDGE"), no such actions, suits or proceedings are threatened or
contemplated. Neither Stevia, nor any director or officer thereof, is the
subject of any action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There
has not been, and to Stevia's Knowledge, there is not pending or contemplated,
any investigation by any regulatory body involving Stevia or any current or
former director or officer of Stevia.
4.4 INVESTMENT. Stevia is acquiring the Note and the Conversion Units (the
"SECURITIES") for Stevia's own account, and not directly or indirectly for the
account of any other Person. Stevia is acquiring the Securities for investment
and not with a view to distribution or resale thereof except in compliance with
the Securities Act and any applicable state law regulating securities.
4.5 REGISTRATION OF SECURITIES. Stevia must bear the economic risk of
investment for an indefinite period of time because the Securities have not been
registered under the Securities Act and therefore cannot and will not be sold
unless it is subsequently registered under the Securities Act or an exemption
from such registration is available. The Company has made no representations,
warranties or covenants whatsoever as to whether any exemption from the
Securities Act, including, without limitation, any exemption for limited sales
in routine brokers' transactions pursuant to Rule 144 under the Securities Act
will become available. Transfer of the Securities has not been registered or
qualified under any applicable state law regulating securities and therefore the
Securities cannot and will not be sold unless it is subsequently registered or
qualified under any such act or an exemption therefrom is available. The Company
10
has made no representations, warranties or covenants whatsoever as to whether
any exemption from any such act will become available.
4.6 ACCREDITED INVESTOR. Stevia represents and warrants to, and covenants
with, the Company that Stevia is an "accredited investor" as defined in Rule 501
of Regulation D under the Securities Act and Stevia is also knowledgeable,
sophisticated and experienced in making, and is qualified to make decisions with
respect to investments in securities presenting an investment decision like that
involved in the purchase of the Securities hereunder, including investments in
securities issued by the Company and investments in comparable companies, and
has requested, received, reviewed and considered all information it deemed
relevant in making an informed decision to purchase the Securities.
4.7 ACCESS TO INFORMATION. Stevia acknowledges that the Company has made
available to it the opportunity to ask questions of and receive answers from the
Company's officers, managers or member managers concerning the terms and
conditions of this Agreement and the business and financial condition of the
Company, and Stevia has received such information about the business and
financial condition of the Company and the terms and conditions of the Agreement
as it has requested. Stevia understands that the Note and Conversion Units are
speculative investments, which involve a high degree of risk of loss of Stevia's
entire investment.
4.8 SOPHISTICATION. Stevia further represents and warrants that Stevia has
such business or financial expertise as to be able to protect Stevia's own
interests in connection with an investment in the Securities. Stevia further
represents that it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risk of such investment.
Stevia also represents that it has not been organized for the purpose of
acquiring securities.
4.9 NO BROKERS. No Person has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or valid claim against
Stevia or the Company for any commission fee or other compensation as a finder
or broker because of any act or omission of Stevia or any agent for Stevia.
4.10 FURTHER ASSURANCES. Stevia agrees and covenants that at any time and
from time to time it will promptly execute and deliver to the Company such
further instruments and documents and take such further action as the Company
may reasonably require in order to carry out the full intent and purpose of this
Agreement and to comply with state or federal securities laws or other
regulatory approvals.
5. INDEMNIFICATION
5.1 COMPANY'S INDEMNIFICATION OF STEVIA. To the extent permitted by law,
the Company shall defend, indemnify and hold harmless Stevia from and against
any and all losses, claims, judgments, liabilities, demands, charges, suits,
penalties, costs or expenses, including court costs and attorneys' fees
resulting from any claim, demand, suit, action or proceeding brought by any
third party ("CLAIMS AND LIABILITIES") with respect to or arising from (i) the
breach of any warranty or any inaccuracy of any representation made by the
Company in this Agreement, or (ii) the breach of any covenant or agreement made
by the Company in this Agreement.
5.2 STEVIA'S INDEMNIFICATION OF COMPANY. To the extent permitted by law,
Stevia shall defend, indemnify and hold harmless the Company from and against
any and all Claims and Liabilities with respect to or arising from (i) the
breach of any warranty or any inaccuracy of any representation made by Stevia in
this Agreement, or (ii) the breach of any covenant or agreement made by Stevia
in this Agreement.
5.3 CLAIMS PROCEDURE. Promptly after the receipt by any indemnified party
(the "INDEMNITEE") of notice of the commencement of any action or proceeding
against such Indemnitee, such Indemnitee shall, if a claim with respect thereto
is or may be made against any indemnifying party (the "INDEMNIFYING PARTY")
pursuant to this Section 5, give such Indemnifying Party written notice of the
11
commencement of such action or proceeding and give such Indemnifying Party a
copy of such claim and/or process and all legal pleadings in connection
therewith. The failure to give such notice shall not relieve any Indemnifying
Party of any of its indemnification obligations contained in this Section 5,
except where, and solely to the extent that, such failure actually and
materially prejudices the rights of such Indemnifying Party. Such Indemnifying
Party shall have, upon request within thirty (30) days after receipt of such
notice, but not in any event after the settlement or compromise of such claim,
the right to defend, at its own expense and by its own counsel reasonably
acceptable to the Indemnitee, any such matter involving the asserted liability
of the Indemnitee; provided, however, that if the Indemnitee determines that
there is a reasonable probability that a claim may materially and adversely
affect it, other than solely as a result of money payments required to be
reimbursed in full by such Indemnifying Party under this Section 5 or if a
conflict of interest exists between Indemnitee and the Indemnifying Party, the
Indemnitee shall have the right to defend, compromise or settle such claim or
suit; and, provided, further, that such settlement or compromise shall not,
unless consented to in writing by such Indemnifying Party, which shall not be
unreasonably withheld, be conclusive as to the liability of such Indemnifying
Party to the Indemnitee. In any event, the Indemnitee, such Indemnifying Party
and its counsel shall cooperate in the defense against, or compromise of, any
such asserted liability, and in cases where the Indemnifying Party shall have
assumed the defense, the Indemnitee shall have the right to participate in the
defense of such asserted liability at the Indemnitee's own expense. In the event
that such Indemnifying Party shall decline to participate in or assume the
defense of such action, prior to paying or settling any claim against which such
Indemnifying Party is, or may be, obligated under this Section 5 to indemnify an
Indemnitee, the Indemnitee shall first supply such Indemnifying Party with a
copy of a final court judgment or decree holding the Indemnitee liable on such
claim or, failing such judgment or decree, the terms and conditions of the
settlement or compromise of such claim. An Indemnitee's failure to supply such
final court judgment or decree or the terms and conditions of a settlement or
compromise to such Indemnifying Party shall not relieve such Indemnifying Party
of any of its indemnification obligations contained in this Section 5, except
where, and solely to the extent that, such failure actually and materially
prejudices the rights of such Indemnifying Party. If the Indemnifying Party is
defending the claim as set forth above, the Indemnifying Party shall have the
right to settle the claim only with the consent of the Indemnitee.
5.4 EXCLUSIVE REMEDY. Each of the parties hereto acknowledges and agrees
that, from and after the Effective Date, its sole and exclusive monetary remedy
with respect to any and all claims relating to the subject matter of this
Agreement shall be pursuant to the indemnification provisions set forth in this
Section 5, except that nothing in this Agreement shall be deemed to constitute a
waiver of any injunctive or other equitable remedies or any tort claims of, or
causes of action arising from, intentionally fraudulent misrepresentation,
willful breach or deceit.
6. CONFIDENTIALITY
Stevia represents to the Company that, at all times during the Company's
offering of the Note, Stevia has maintained in confidence all non-public
information regarding the Company received by Stevia from the Company or its
agents, and covenants that it will continue to maintain in confidence such
information and shall not use such information for any purpose other than to
evaluate an investment in the Securities until such information (a) becomes
generally publicly available other than through a violation of this provision by
Stevia or its agents or (b) is required to be disclosed in legal proceedings
(such as by deposition, interrogatory, request for documents, subpoena, civil
investigation demand, filing with any governmental authority or similar
process), provided, however, that before making any use or disclosure in
reliance on this subparagraph (b) Stevia shall give the Company at least fifteen
(15) days prior written notice (or such shorter period as required by law)
specifying the circumstances giving rise thereto and will furnish only that
portion of the non-public information which is legally required and will
exercise his best efforts to obtain reliable assurance that confidential
treatment will be accorded any non-public information so furnished.
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7. COVENANTS OF THE COMPANY
7.1 PARTICIPATION IN FUTURE FINANCING.
(a) From the date hereof until the expiration of the Maturity Date (as
defined in the Note), upon the sale by the Company of Units (or any securities
of the Company which would entitle the holder thereof to acquire at any time
Units, including, without limitation, any debt, preferred units, right, option,
warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Units)
for cash consideration (a "SUBSEQUENT FINANCING"), Stevia shall have the right
to participate in such Subsequent Financing up to an amount equal to 50% of the
Subsequent Financing on the same terms, conditions and price provided for in the
Subsequent Financing.
(b) At least five (5) business days prior to the anticipated closing of the
Subsequent Financing, the Company shall deliver to Stevia a written notice of
its intention to effect a Subsequent Financing ("Pre-Notice"), which Pre-Notice
shall ask Stevia if it wants to review the details of such financing (such
additional notice, a "SUBSEQUENT FINANCING NOTICE"). Upon the request of Stevia,
and only upon a request by Stevia, for a Subsequent Financing Notice, the
Company shall promptly, but no later than one (1) business day after such
request, deliver a Subsequent Financing Notice to Stevia. The Subsequent
Financing Notice shall describe in reasonable detail the proposed terms of such
Subsequent Financing, the amount of proceeds intended to be raised thereunder
and the Person or Persons through or with whom such Subsequent Financing is
proposed to be effected and shall include a term sheet or similar document
relating thereto as an attachment.
(c) If Stevia desires to participate in such Subsequent Financing, it must
provide written notice to the Company by not later than 5:30 p.m. (CST) on the
fourth (4th) business day after Stevia has received the Pre-Notice that Stevia
is willing to participate in the Subsequent Financing, the amount of Stevia's
participation, and representing and warranting that Stevia has such funds ready,
willing, and available for investment on the terms set forth in the Subsequent
Financing Notice. If the Company receives no such notice from Stevia as of such
fourth (4th) business day, Stevia shall be deemed to have notified the Company
that it does not elect to participate and the Company shall have the right to
enter into the Subsequent Financing, without the participation of Stevia on the
same terms.
(d) Notwithstanding the foregoing, this Section 7.1 shall not apply in
respect of the issuance of (a) Units or options to employees, officers, managers
or members of the Company pursuant to any option plan duly adopted for such
purpose, by a majority of the managers of the Company, (b) securities upon the
exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into Units
issued and outstanding on the date of this Agreement, provided that such
securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities, and (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of the managers of
the Company, provided that any such issuance shall only be to a Person (or to
the equityholders of a Person) which is, itself or through its subsidiaries, an
operating company or an owner of an asset in a business synergistic with the
business of the Company and shall provide to the Company additional benefits in
addition to the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose of raising
capital or to an entity whose primary business is investing in securities.
7.2 PLACEMENT AGENT. If the Company enters into a Subsequent Financing and
utilizes the services of a placement agent during such Subsequent Financing,
then prior to the closing of such Subsequent Financing, the Company shall
deliver to Cova Capital Partners, LLC ("COVA") a written notice describing the
proposed terms for the engagement of a placement agent for such Subsequent
Financing, and provide a three (3) business day period from Cova's receipt of
such notice during which Cova may accept an engagement as the Company's
placement agent on the terms set forth in the written notice. If such acceptance
is not received by the Company prior to the expiration of the three (3) business
day period, the Company may engage another placement agent on substantially
13
similar terms as set forth in its written notice to Cova. The Company shall have
no obligations hereunder to Cova if the Company enters into a Subsequent
Financing without the assistance of a placement agent.
7.3 RIGHT OF FIRST REFUSAL. From the date hereof until the five (5) year
anniversary of the Effective Date (the "ROFR PERIOD"), the Company shall not,
directly or indirectly through an Affiliate, enter into any agreement or
consummate any transaction relating to the management rights for distribution of
the Company's products in Asia with any Person other than Stevia (a "THIRD-PARTY
TRANSACTION") except in compliance with the terms and conditions of this Section
7.3.
(a) If, at any time during the ROFR Period, the Company receives a bona
fide written offer for a Third-party Transaction that the Company desires to
accept (each, a "THIRD-PARTY OFFER"), the Company shall, within seven (7)
business days following receipt of the Third-party Offer, notify Stevia in
writing (the "OFFER NOTICE") of the identity of all proposed parties to such
Third-party Transaction and the material financial and other terms and
conditions of such Third-party Offer (the "MATERIAL TERMS"). Each Offer Notice
constitutes an offer made by the Company to enter into an agreement with Stevia
on the same Material Terms of such Third-party Offer (THE "ROFR OFFER").
(b) At any time prior to the expiration of the fourteen (14) business day
period following Stevia's receipt of the Offer Notice (the "EXERCISE PERIOD"),
Stevia may accept the ROFR Offer by delivery to the Company of a written notice
of acceptance of the Material Terms provided, however, that Stevia is not
required to accept any non-financial terms or conditions contained in any
Material Terms that cannot be fulfilled by Stevia as readily as by the Person
making the Third-party Offer (e.g., an agreement conditioned upon the services
of a particular individual or the supply of a product exclusively under the
control of such third-party offeror), however Stevia must agree to terms which
are as similar to such terms as commercially reasonable.
(c) If, by the expiration of the Exercise Period, Stevia has not accepted
the ROFR Offer, and provided that the Company has complied with all of the
provisions of this Section 7.3, at any time following the expiration of the
Exercise Period, the Company may consummate the Third-party Transaction with the
counterparty identified in the applicable Offer Notice, on Material Terms that
are the same or more favorable to the Company as the Material Terms set forth in
the Offer Notice. If such Third-party Transaction is not consummated within a
thirty (30) day period, the terms and conditions of this Section 7.3 will again
apply and the Company shall not enter into any Third-party Transaction during
the ROFR Period without affording Stevia the right of first refusal on the terms
and conditions of this Section 7.3.
7.4 LEGAL FEES. The Company has reserved for, and shall pay, the legal fees
of Stevia in connection with the transactions contemplated under this Agreement
in the amount of $10,000, with the full amount payable upon the Closing Date.
7.5 SENIORITY. From and after the Closing Date and until the earlier of
full conversion under the Note or the expiration of the maturity date
thereunder, no indebtedness or other claim against the Company shall be issued
which is senior to the Note in right of payment, whether with respect to
interest or upon liquidation or dissolution, or otherwise, other than
indebtedness secured by purchase money security interests (which is senior only
as to underlying assets covered thereby) and capital lease obligations (which is
senior only as to the property covered thereby). Nothing in this Agreement shall
restrict the Company's right to obtain additional financing via a factoring
agreement or similar facility.
14
7.6 INFORMATION RIGHTS
(a) FINANCIAL INFORMATION.
(i) QUARTERLY FINANCIAL STATEMENTS. The Company shall deliver to Stevia
as soon as practicable after the end of each fiscal quarter of the Company, but
in any event within thirty (30) days thereafter, unaudited statements of
operations and cash flows of the Company for such quarter, and a balance sheet
of the Company as of the end of such quarter, such quarterly financial reports
to be in reasonable detail.
(ii) ANNUAL FINANCIAL STATEMENTS. The Company shall deliver to Stevia
as soon as practicable after the end of each fiscal year of the Company, but in
any event within one hundred twenty (120) days thereafter, unaudited statements
of operations and cash flows of the Company for such year, and a balance sheet
of the Company as of the end of such year, such year-end financial reports to be
in reasonable detail.
(b) OTHER INFORMATION; CONFIDENTIALITY. The Company shall deliver Stevia
such other information reasonably requested by Stevia and a copy of any other
reports or correspondence provided to all of the holders of Units (in their
capacities as members) at the same time as such reports or correspondence is
provided to the holders of Units, PROVIDED that Stevia agrees to use the same
degree of care as Stevia uses to protect its own confidential information, and
in no event less than a reasonable degree of care, to keep confidential any
information furnished to Stevia that the Company identifies as being
confidential or proprietary (so long as such information is not in the public
domain). The provisions of Section 7.6(a) and this Section 7.6(b) shall not be
in limitation of any rights which Stevia may have with respect to the books and
records of the Company and its subsidiaries, or to inspect their properties or
discuss their affairs, finances, and accounts, under applicable law.
(c) TERMINATION OF INFORMATION RIGHTS. The information rights granted under
this Section 7.6 shall expire upon the earlier of (i) the closing of the first
underwritten offering of the Company's securities to the public pursuant to an
effective registration statement under the Securities Act, or (ii) when the
Company first becomes subject to the periodic reporting requirements of Section
12(g) or 15(d) of the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
8. MISCELLANEOUS
8.1 SURVIVAL. All representations and warranties of the parties contained
in this Agreement will remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the parties to this Agreement,
until the earlier of (i) date that is the second anniversary of the Effective
Date, or (ii) the date that the Note has been fully paid or fully converted in
accordance with Section 4.1 of the Note, whereupon such representations and
warranties will expire.
8.2 SUCCESSORS AND ASSIGNS. Subject to the restrictions on transfer set
forth above, the rights and obligations of Company and Stevia under this
Agreement shall be binding upon and benefit the successors, assigns, heirs,
administrators and transferees of the parties.
8.3 ASSIGNMENT. Stevia may assign its rights and obligations hereunder,
including the rights to any or all of the Conversion Units, without the prior
written consent of the Company, provided that Stevia provides prior notice to
the Company of any such assignment and such assignment is in compliance with the
applicable securities laws. The Company may assign this Agreement and its rights
hereunder without the prior consent of Stevia in connection with a merger,
consolidation, sale of all or substantially all of the Company's assets or
similar transaction.
8.4 GOVERNING LAW. This Agreement and all actions arising out of or in
connection with this Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado, without regard to the conflict of laws
provisions of the State of Colorado or of any other state.
15
8.5 AMENDMENT OR WAIVER. Any term of this Agreement may be amended and
provisions may be waived by Stevia and the Company, either retroactively or
prospectively, upon the written consent of the Company and Stevia. Any term of
this Agreement may be amended or waived with the written consent of Company and
Stevia. Any amendment or waiver effected in accordance with this Section shall
be binding upon any future holder of the Note and the Company. A waiver signed
by a Party shall be effective only in the specific instance and for the specific
purpose given. Mere delay or failure to act shall not preclude the exercise or
enforcement of any of the party's rights or remedies.
8.6 NOTICES. Any notice required or permitted under this Agreement shall be
given in writing and shall be deemed effectively given (i) at the time of
personal delivery, if delivery is in person; (ii) one (1) business day after
deposit with an express overnight courier for United States deliveries, or two
(2) business days after such deposit for deliveries outside of the United
States, with proof of delivery from the courier requested; (iii) three (3)
business days after deposit in the United States mail by certified mail (return
receipt requested) for United States deliveries when addressed to the party to
be notified; or (iv) one (1) business day after transmission by telecopier with
confirmation of successful transmission. Notices shall be delivered (i) if to
Stevia, to the address and contact information for Stevia set forth on the
Signature Page of this Agreement, and (ii) if to the Company, 156 Sinclair
Road., Snowmass Village, CO 81615, attention: Paul Casey Puckett, or at such
other address as any party may designate by giving written notice to the other
party.
8.7 SEVERABILITY. In the event any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in whole or in part or in any respect, or in the event any one or
more of the provisions of this Agreement operate or would prospectively operate
to invalidate this Agreement, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement. In such instance, this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein and the remaining provisions of this
Agreement shall remain operative and in full force and effect and in no way
shall be affected, prejudiced or disturbed thereby.
8.8 DELAYS OR OMISSIONS. No delay or omission on the part of Stevia in
exercising any right under this Agreement shall operate as a waiver of such
right or of any other right of Stevia, nor shall any delay, omission or waiver
on any one occasion be deemed a bar to or waiver of the same or any other right
on any future occasion.
8.9 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not define or limit any terms or provisions hereof.
8.10 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties, and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as
specifically set forth herein or therein.
8.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart. Delivery of an executed signature page of this Agreement by
facsimile transmission or by Electronic Transmission shall be as effective as
delivery of a manually executed counterpart hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Note Purchase Agreement
as of the date first written above.
COMPANY:
YOPCP, LLC
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
INVESTOR:
STEVIA CORP.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
Address:
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[SIGNATURE PAGE TO NOTE PURCHASE AGREEMENT]
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EXHIBIT A
FORM OF SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
EXHIBIT B
FORM OF SECURITY AGREEMENT