Exhibit 10.2
THIS SENIOR SECURED CONVERTIBLE PROMISSORY NOTE AND THE SECURITIES ISSUABLE UPON
THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR UNDER ANY SECURITIES LAWS OF ANY STATE. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR ANY SUCH LAW.
YOPCP, LLC
SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
$250,000 April 2, 2014
For value received, the undersigned, YOPCP, LLC, a Colorado limited
liability company (the "COMPANY") promises to pay to the order of Stevia Corp.,
a Nevada corporation, or permitted assigns (hereinafter, with any subsequent
holder, the "HOLDER") the principal sum of two hundred and fifty thousand
dollars ($250,000) (the "PRINCIPAL"), with interest on the unpaid principal from
the date hereof at a rate of fifteen percent (15%) simple interest per annum.
Interest shall be calculated on the basis of the actual number of days elapsed
over a 365-day year, shall commence to accrue on the date hereof and shall
continue on the outstanding principal until paid in full in accordance with
Section 4.2 of this Note.
This Senior Secured Convertible Promissory Note ("NOTE") is issued by the
Company in connection with that certain Note Purchase Agreement dated as of even
date herewith (the "AGREEMENT"). This Note incorporates by reference all the
terms of the Agreement. The following is a statement of the rights of the Holder
and the conditions to which this Note is subject, and to which the Holder, by
the acceptance of this Note, agrees:
1. INTEREST PAYMENTS. All accrued interest hereunder shall be repaid solely via
receipt of the Interest Units set forth in Section 4.2.
2. APPLICATION OF PAYMENTS. All payments of principal shall be in lawful money
of the United States of America, except as set forth below in connection with
conversion or redemption of this Note. All payments on account of the
indebtedness evidenced by this Note shall be applied first to any and all costs,
expenses and other charges then owed the Holder by the Company and second to the
unpaid principal balance hereof. All payments so received after demand or
acceleration shall be applied in such manner as the Holder may determine in its
sole and absolute discretion.
3. MATURITY DATE. Unless redeemed pursuant to the terms of this Note or unless
earlier accelerated by the terms of this Note, the principal amount hereof and
all other fees, costs and charges, if any (the "DEBT"), shall be due and payable
at the sole discretion of the Holder on the date which is the earlier of (i)
twelve (12) months from the original date of issuance of this Note, unless the
Holder extends such due date at its sole discretion (the "MATURITY DATE"),
provided, however, that the Holder may demand immediate repayment of the Debt at
any time after the expiration of the initial twelve (12) month period from the
original date of issuance of this Note; or (ii) the date of sale of Units by the
Company in a financing after the date hereof (the "COMPANY FINANCING").
4. CONVERSION. The Debt shall be converted as follows:
4.1 CONVERSION OF DEBT. Upon the closing of the Company Financing and
until the expiration of the Maturity Date, Holder shall have the right to
convert all or part of the Debt, at its sole discretion, at a conversion price
(the "CONVERSION PRICE") equal to the price per unit of the Company's membership
units (the "UNITS") in the Company Financing and on the same offered terms, into
fully paid and non-assessable common/preferred units of the Company ("CONVERSION
UNITS"). The number of Conversion Units to be issued upon each conversion of the
Debt shall be determined by dividing that portion of Debt to be converted by the
Conversion Price.
4.2 ADDITIONAL UNIT ISSUANCE. In full repayment of any interest which
may accrue on the Note, Holder shall have the additional right to receive an
amount of Conversion Units equal to the total amount of outstanding Debt
immediately prior to such repayment or conversion, as applicable, divided by the
Conversion Price (the "INTEREST UNITS").
4.3 PARTIAL CONVERSION. All rights with respect to such portion of the
Debt converted pursuant to Section 4.1 shall terminate upon such conversion.
Notwithstanding the foregoing, the Holder agrees to surrender this Note to the
Company for cancellation as to that portion of the Note that the Holder elects
to convert as soon as possible following such conversion, and the Company shall
execute and deliver a new promissory note, upon the same terms and conditions
set forth herein, evidencing the right of the Holder to the balance of the
principal that was not converted.
4.4 ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER. In the event
(a) of any reorganization of the Company, (b) the Company consolidates with or
merges into another entity, or (c) the Company sells all or substantially all of
its assets to another entity and then distributes the proceeds to its
shareholders (each of such events shall be referred to herein as a "LIQUIDATION
EVENT"), then, and in each such case, the Holder, upon the conversion of this
Note at any time after the consummation of any Liquidation Event shall be
entitled to receive, in lieu of the units or other securities and property
receivable upon the conversion of this Note prior to such consummation, the
units or other securities or property to which the Holder would have been
entitled upon the consummation of such Liquidation Event if the Holder had
converted this Note immediately prior thereto, all subject to further adjustment
as provided in this Note, and the successor or purchasing entity in a
Liquidation Event (if other than the Company) shall duly execute and deliver to
the Holder a supplement hereto acknowledging such entity's obligations under
this Note.
5. MECHANICS OF CONVERSION. As promptly as practicable after the conversion
or repayment in full of this Note, this Note shall be cancelled, and the Company
will either (i) issue and deliver to the Holder within seven (7) business days a
certificate or certificates (bearing such legends as may be required by
applicable state and federal securities laws in the opinion of legal counsel for
the Company) representing the full number of Conversion Units issuable upon such
conversion or repayment (and the issuance of such certificate or certificates
shall be made without charge to the Holder of the Note for any issuance tax in
respect thereof or other cost incurred by Company in connection with such
conversion and the related issuance of Conversion Units), or (ii) update the
Company's membership unit ledger to reflect the Holder's ownership interest in
the Conversion Units following such conversion. Upon the conversion of this
Note, the Holder shall also execute any applicable documents associated with the
Company Financing (e.g. the operating agreement, purchase agreement, etc.).
6. DEFAULT. The Company will be in default if any of the following occurs
(each an "EVENT OF DEFAULT"): (a) the Company fails to make payment of the
principal amount or an interest payment when due and fails to cure the default
within ten (10) days of the date of delivery of notice from Holder to the
Company of the default; (b) the Company fails in any material respect to comply
with or to perform when due any other material term, obligation, covenant, or
condition contained in this Note, and fails to cure the default within ten (10)
days of the date of delivery of notice from Holder to the Company of the
default; (c) the Company shall make an assignment for the benefit of creditors,
or apply for or consent to the appointment of a receiver or trustee for it or
for a substantial part of its property or business; or such a receiver or
trustee shall otherwise be appointed; and/or (d) bankruptcy, insolvency,
reorganization or liquidation proceedings or other proceedings or relief under
any bankruptcy law or any law for the relief of debtors shall be instituted by
or against the Company and shall not have been dismissed within sixty (60) days
of filing. Upon an Event of Default, Holder may declare the entire unpaid
principal and accrued interest amount immediately due and payable, all without
further demand, presentment or notice, or grace period, all of which hereby are
expressly waived.
7. CONVERSION PRICE ADJUSTMENT. The following shall apply solely during any
periods prior to conversion pursuant to Sections 4.1 and 4.2.
7.1 ADJUSTMENTS FOR SPLITS AND SUBDIVISIONS. In the event the Company
should at any time or from time to time after the date of issuance hereof fix a
record date for the effectuation of a split or subdivision of the outstanding
2
Units of the Company or the determination of holders of Units entitled to
receive a dividend or other distribution payable in additional Units or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional Units without payment of any
consideration by such holder for the additional Units (including the additional
Units issuable upon conversion or exercise thereof), then, as of such record
date (or the date of such dividend distribution, split or subdivision if no
record date is fixed), the Conversion Price of this Note shall be appropriately
decreased so that the number of Conversion Units issuable pursuant to this Note
shall be increased in proportion to such increase of outstanding Units.
7.2 ADJUSTMENTS FOR REVERSE UNIT SPLITS. If the number of Units
outstanding at any time after the date hereof is decreased by a combination of
the outstanding Units, then, following the record date of such combination, the
Conversion Price for this Note shall be appropriately increased so that the
number of Conversion Units issuable pursuant to this Note shall be decreased in
proportion to such decrease in outstanding Units.
7.3 REDEMPTION OF UNITS. Should all of the Company's Units be, or if
outstanding would be, at any time prior to full payment of this Note be
redeemed, then this Note shall immediately become convertible into that number
of Conversion Units equal to the number of Units that would have been received
if this Note had been converted in full in accordance with Sections 4.1 and 4.2,
and the Units received thereupon had been simultaneously converted immediately
prior to such event, and the Conversion Price shall be immediately adjusted to
equal the quotient obtained by dividing (x) the aggregate Conversion Price of
the maximum number of Units into which this Note was convertible immediately
prior to such redemption, by (y) the number of Conversion Units for which this
Note is convertible immediately after such redemption.
8. RESERVED.
9. SECURITY. The obligations of the Company to the Holder pursuant to this
Note shall be secured by a lien on all assets of the Company, which lien shall
be evidenced by the Security Agreement, dated as of the date hereof, by and
between the Company and the Holder.
10. MISCELLANEOUS.
9.1 RESTRICTIONS ON TRANSFER. This Note may only be transferred in
compliance with applicable state and federal securities laws. All rights and
obligations of the Company and the Holder will be binding upon and benefit the
successors, assigns, heirs, and administrators of the parties.
9.2 ASSIGNMENT. Holder may transfer or assign all or any part of this
Note and/or all or any portion of the Conversion Units.
9.3 AMENDMENT OR WAIVER. Any provision of this Note may be amended,
waived or modified only upon the written consent of the Company and the Holder.
9.4 SEVERABILITY. In the event any one or more of the provisions
contained in this Note 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 Note operate or would prospectively operate to
invalidate this Note, such invalidity, illegality, or unenforceability shall not
affect any other provision of this Note. In such instance, this Note shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein and the remaining provisions of this Note shall remain
operative and in full force and effect and in no way shall be affected,
prejudiced or disturbed thereby.
9.5 GOVERNING LAW. This Note 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
3
IN WITNESS WHEREOF, the Company has caused this Senior Secured Convertible
Promissory Note to be signed in its name as of the date first above written.
YOPCP, LLC
By:
------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
AGREED AND ACCEPTED:
STEVIA CORP.
By:
-------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SIGNATURE PAGE TO SENIOR SECURED CONVERTIBLE PROMISSORY NOTE]
4