Exhibit 10.1
RESEARCH AGREEMENT
November 27, 2012
This Research Agreement (the "Agreement") is made
AMONG:
GLOBAL STEVIA CORP. a Nevada corporation, with its principal offices
at Xx 00, Xxxxx 00, Xxxx Xx Xxxxxx, Xxx Xxxx Xxxxxxxx, Xxxxx city,
Vietnam.
("GLOBAL STEVIA")
AND:
PLANT RESOURCE CENTER, a Vietnamese governmental agency with offices
at An Xxxxx, Xxxx Xxx, Hanoi.
(the "PLANT CENTER")
WHEREAS:
A. The Plant Center carries on the business of engaging in research and
development of agriculture techniques and plant varieties; and
B. Global Stevia is desirous to entrust the Plant Center to research
cultivation and strains of stevia plants.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
a) "Business Day" means a day, other than a Saturday or Sunday, on which
banks are open for ordinary banking business in Vietnam.
b) "Parties" means, collectively, the Plant Center and Global Stevia, and
the term "Party" shall refer to either of them as the context may
require.
c) "Stevia Seedlings" means suitable stevia planting materials (ie:
cutting/roots).
d) "US$" means the United States dollar.
In this Agreement where the context admits:
a) "subsidiary" shall mean a subsidiary of Global Stevia;
b) references to, or to any provision of, any treaty, statute, directive,
regulation, decision, order, instrument, by-law, or any other law of,
or having effect in, any jurisdiction ("Laws") shall be construed also
as references to all other Laws made under the Law referred to, and to
all such Laws as for the time being amended, re-enacted (with or
without amendment), consolidated or replaced or as their application
is modified by other Laws from time to time;
c) references to clauses and schedules are references to the clauses of
and schedules to this Agreement and references to this Agreement
include the schedules and the Agreed Form documents;
d) references to the singular shall include the plural and vice versa and
references to the masculine, the feminine and the neuter shall include
each other such gender;
e) "person" includes any individual, partnership, body corporate,
corporation or aggregate, state or agency of a state, and any
unincorporated association or organization, in each case whether or
not having separate legal personality; and
f) "company" includes any body corporate.
1.2 HEADINGS
The headings and sub-headings are inserted for convenience only and shall not
affect the construction of this Agreement.
1.3 SCHEDULES
Each of the schedules shall have effect as if set out herein.
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2. RESEARCH AND DEVELOPMENT
2.1 During the term of this Agreement, the Plant Center shall ensure that all
research and development activity requested by Global Stevia is undertaken at
the Plant Center's facilities. The Plant Center shall complete all research and
development activities by December 12, 2013 and deliver a completed report,
intellectual property and plant seedlings to Global Stevia by December 25, 2013.
2.2 Global Stevia shall cooperate with the Plant Center and provide its research
and development criteria along with this Agreement on Schedule A. Schedule A
shall also specify the funding anticipated being required for the research and
development plan.
2.3 Global Stevia shall provide the funding as well as plant varieties for all
research and development to be undertaken under this Agreement and specified in
Schedule A.
2.4 The Plant Center shall maintain the genetic resources of Global Stevia
within its propagation facilities and ensure their security.
2.5 All plant varieties and genetic information generated by the Plant Center in
the process of meeting its obligations pursuant to this Agreement shall remain
the property of Global Stevia.
3. CONFIDENTIALITY
3.1 Subject to the provisions of clauses 3.2 and 3.3, each party:
a) shall treat as strictly confidential and use solely for the purposes
contemplated by this Agreement all information, whether technical or
commercial, obtained or received by it as a result of entering into or
performing its obligations under this Agreement and relating to the
negotiations relating to, or the provisions or subject matter of, this
Agreement or any other party to it ("Confidential Information");
b) shall not, except with the prior written consent of the party from
whom the Confidential Information was obtained publish or otherwise
disclose to any person any Confidential Information except for the
purposes contemplated by this Agreement; and
c) where any of the Confidential Information is also privileged, the
waiver of such privilege is limited to the purposes of this agreement
and does not and is not intended to result in any wider waiver of the
privilege and each party shall take all reasonable steps to protect
the privilege of the other party in its respective Confidential
Information and shall advice the other party promptly in writing if
any step is taken by any other person to obtain any privileged
Confidential Information of the other party.
3.2 Each party may disclose Confidential Information which would otherwise be
subject to clause 3.1 if, and only to the extent that it can demonstrate that:
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a) such disclosure is required by law or by any securities exchange or
regulatory or governmental body having jurisdiction over it, wherever
situated, and whether or not the requirement has the force of law;
b) the Confidential Information was lawfully in its possession prior to
its disclosure by the other party (as evidenced by written records)
and had not been obtained from the other party;
c) the Confidential Information has come into the public domain other
than through its fault or the fault of any person to whom the
Confidential Information has been disclosed in accordance with clause
3.1;
provided that any such disclosure shall not be made without prior consultation
with the party from whom the Confidential Information was obtained.
3.3 Each party may for the purposes contemplated by this Agreement disclose
Confidential Information to the following persons or any of them, [provided that
a written confidentiality undertaking in a form equivalent to clause 3.1 has
been obtained from such person:
a) its professional advisers, auditors, bankers and insurers, acting as
such; and
b) its directors, officers, senior employees and sub-contractors.
3.4 The restrictions contained in this clause shall survive the termination of
this Agreement and shall continue for two years from the date of termination.
4. WARRANTIES
The Plant Center hereby separately represents warrants and undertakes for itself
to and with Global Stevia and its successors in title as follows:
a) Plant Center has full legal right, power and authority to execute,
deliver and perform their obligations under this Agreement; and
b) There is no provision of any existing contract, agreement or
instrument binding Plant Center which has been or would be contravened
by the execution and delivery of this Agreement or by the performance
or observance by Plant Center of any of the terms hereof.
Global Stevia hereby separately represents warrants and undertakes for itself to
and with Plant Center and its successors in title as follows:
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a) Global Stevia has full legal right, power and authority to execute,
deliver and perform their obligations under this Agreement; and
b) There is no provision of any existing contract, agreement or
instrument binding Global Stevia which has been or would be
contravened by the execution and delivery of this Agreement or by the
performance or observance by Global Stevia of any of the terms hereof.
5. TERM AND TERMINATION
5.1 This Agreement shall come into force on the Effective Date and, subject to
earlier termination pursuant to clauses 9.4, 5.2, 5.3 or 5.4 below, shall
continue in force until December 12, 2013 ("Term") and thereafter may be renewed
on its anniversary each year for an additional period of one (1) year by written
consent of both parties ("Extended Term").
5.2 Either party may terminate this Agreement forthwith by giving written notice
to the other in any of the following events:
a) if the other party commits any material breach of any of the terms and
conditions of this Agreement and fails to remedy that breach (if
capable of remedy) within one month after notice from the other party
requiring it to be remedied and giving full particulars of the breach;
or
b) if the other party has a winding up petition presented against it or
enters into liquidation whether compulsory or voluntary (except for
the purposes of bona fide reconstruction or amalgamation with the
prior approval of the other party), or compounds with or makes any
arrangement with its creditors or makes a general assignment for the
benefit of its creditors, or if it has a receiver, manager,
c) administrative receiver or administrator appointed over the whole or
substantially the whole of its undertaking or assets, or if it has an
administration petition presented or administration application made
against it or a notice of intention to appoint an administrator has
been given to any person or if it ceases or threatens to cease to
carry on its business, or makes any material change in its business,
or if it suffers any analogous process under any foreign law.
5.3 Upon termination in accordance with this clause 5 or clause 9.4:
a) the rights and obligations of the parties under this Agreement shall
terminate and be of no future effect, except that clauses 1, 3 and 8
shall remain in full force and effect;
b) any rights or obligations to which any of the parties to this
Agreement may be entitled or be subject before such termination shall
remain in full force and effect;
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c) termination shall not affect or prejudice any right to damages or
other remedy which the terminating party may have in respect of the
event which gave rise to the termination or any other right to damages
or other remedy which any party may have in respect of any breach of
this Agreement which existed at or before the date of termination.
6. LIMITATION OF LIABILITY
6.1 The provisions of this clause 9 set out the entire financial liability of
Plant Center (including any liability for the acts or omissions of its
employees, agents and subcontractors) to Global Stevia in respect of:
a) any breach of this Agreement; and
b) any representation, statement or tortious act or omission including
negligence arising under or in connection with this Agreement;
c) Product liability, product safety only as it pertains to any specific
act of negligence traceable to Plant Center;
d) voluntary or involuntary recall of the products only as it pertains to
any specific act of negligence traceable to Plant Center;
6.2 All warranties, conditions and other terms implied by statute or common law
are to the fullest extent permitted by law, excluded from the terms of this
Agreement.
7. PROVISIONS RELATING TO THIS AGREEMENT
7.1 Either party may at any time, with the prior written consent of the other
party, (such consent not to be unreasonably withheld or delayed) assign all or
any part of its rights and benefits under this Agreement provided that no
consent shall be required for such an assignment to any Affiliate of either
party so long as the assignment does not result in a change to the conditions of
the agreement in any way.
It is understood that Global Stevia may enter into one or more Service
Agreements with companies ("Service Company") to administer specific activities
and/or represent Global Stevia for specific activities within Vietnam. When such
appointments are made, Global Stevia shall inform Plant Center and Plant Center
shall respect the appointed authority of the Service Company.
7.2 Plant Center shall be entitled to carry out its obligations under this
Agreement through any agents or sub-contractors appointed by it in its absolute
discretion for that purpose subject to the written consent of Global Stevia.
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7.3 This Agreement, together with any documents referred to in it constitutes
the whole agreement between the parties relating to its subject matter and
supersedes and extinguishes any prior drafts, agreements, undertakings,
representations, warranties and arrangements of any nature, whether in writing
or oral, relating to such subject matter, and can be amended only by written
agreement amongst the Parties.
The Parties acknowledge that they have not been induced to enter into this
Agreement by any representation or warranty other than those contained in this
Agreement and, having negotiated and freely entered into this Agreement, agree
that they shall have no remedy in respect of any other such representation or
warranty except in the case of fraud. The Parties acknowledge that their legal
advisers have explained to them the effect of this clause.
No variation of this Agreement shall be effective unless made in writing and
signed by each of the parties.
7.4 The rights, powers, privileges and remedies provided in this Agreement are
cumulative and are not exclusive of any rights, powers, privileges or remedies
provided by law or otherwise.
No failure to exercise nor any delay in exercising by any party to this
Agreement of any right, power, privilege or remedy under this Agreement shall
impair or operate as a waiver thereof in whole or in part.
No single or partial exercise of any right, power privilege or remedy under this
Agreement shall prevent any further or other exercise thereof or the exercise of
any other right, powers, privilege or remedy.
7.5 Subject to any express provisions to the contrary each party to this
Agreement shall pay its own costs of and incidental to the negotiation,
preparation, execution and carrying into effect of this Agreement.
7.6 If any provision of this Agreement shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the legality,
validity and enforceability of the remainder of this Agreement in that
jurisdiction shall not be affected, and the legality, validity and
enforceability of the whole of this Agreement in any other jurisdiction shall
not be affected.
7.7 This Agreement may be executed in any number of counterparts, which shall
together constitute one Agreement. Any party may enter into this Agreement by
signing any such counterpart.
7.8 Any notice (which term shall in this clause include any other communication)
required to be given under this Agreement or in connection with the matters
contemplated by it shall, except where otherwise specifically provided, be in
writing in the English language.
Any such notice may be:
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a) personally delivered, in which case it shall be deemed to have given
upon delivery at the relevant address if it is delivered not later
than 17.00 hours on a Business Day, or, if it is delivered later than
17.00 hours on a Business Day or at any time on a day which is not a
Business Day, at 09.00 hours on the next Business Day; or
b) if within USA, sent by first class pre-paid post, in which case it
shall be deemed to have been given two Business Days after the date of
posting; or
c) if from or to any place outside USA, sent by pre-paid airmail, or by
air courier in which case it shall be deemed to have been given seven
Business Days after the date of posting in the case of airmail or two
Business Days after delivery to the courier, in the case of air
courier;
d) sent by facsimile, in which case it shall be deemed to have been given
when despatched, subject to confirmation of uninterrupted transmission
by a transmission report provided that any notice despatched by
facsimile after 17.00 hours on any Business Day or at any time on a
day which is not a Business Day shall be deemed to have been given at
09.00 on the next Business Day; or
e) sent by electronic mail, in which case, it shall be deemed to be given
when received but subject to the same provisions regarding receipt
after 17.00 hours as apply to notices sent by facsimile;
Any party to this Agreement may notify the other party of any change to the
address or any of the other details, provided that such notification shall only
be effective on the date specified in such notice or five Business Days after
the notice is given, whichever is later.
7.9 Nothing in this Agreement shall constitute, or be deemed to constitute a
partnership between the parties, nor except as expressly provided, shall it
constitute, or be deemed to constitute, any party as the agent of any other
party for any purpose.
Subject to any express provisions to the contrary in this Agreement, neither
Party shall have the right or authority to and shall not do any act, enter into
any contract, make any representation, give any warranty, incur any liability,
assume any obligation, whether express or implied, of any kind on behalf of the
other Party or bind the other Party in any way.
8. LAW AND JURISDICTION
8.1 This Agreement shall be governed by, and construed in accordance with,
Vietnamese law.
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8.2 Plant Center shall comply strictly with all applicable requirements relating
to occupational safety and health legislation or similar laws in the country of
operations in which the product is produced, and the relevant rules and
regulations thereunder. In addition, Plant Center shall strive to incorporate
higher international standards where applicable and appropriate and not in
conflict with local rules and regulations.
8.3 In relation to any legal action or proceedings arising out of or in
connection with this Agreement ("Proceedings"), each of the parties irrevocably
submits to courts of Vietnam. All taxes and duties/fees applied inside of
Socialist Republic of Vietnam and the income tax of Plant Center in Vietnam in
accordance to the Vietnam laws shall be entirely at Plant Center charge.
Global Stevia shall be responsible for all the import taxes and other duties (if
any) assessed by the country of import for the imported goods under this
agreement in accordance to the laws of the country of import.
9. FORCE MAJUERE
9.1 Neither party shall be deemed to be in breach of this Agreement or otherwise
liable to the other as a result of any delay or failure in the performance of
its obligations under this Agreement if and to the extent that such delay or
failure is caused by force majeure (as defined in clause 9.2) and the time for
performance of the relevant obligation(s) shall be extended accordingly.
9.2 For the purpose of this clause, "force majeure" means any circumstances not
within the reasonable control of the party concerned including, without
limitation:
a) any strike, lockout or other industrial action, or any shortage of or
difficulty in obtaining labor, fuel, raw materials or components; any
destruction, permanent breakdown, malfunction or damage of or to any
premises, plant, equipment (including computer systems) or materials;
b) any action taken by a governmental or public authority of any kind,
including, without limitation, not granting a consent, exemption,
approval or clearance or imposing an embargo, export or import
restriction, rationing, quota or other restriction or prohibition;
c) any civil commotion or disorder, riot, invasion, war, threat of or
preparation for war;
d) any accident, fire, or explosion, (other than in each case, one caused
by a breach of contract by or assistance of the party concerned)
storm, flood, earthquake, subsidence, epidemic or other natural
physical disaster.
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9.3 A party whose performance of its obligations under this Agreement is delayed
or prevented by force majeure:
a) shall immediately notify the other party of the nature, extent, effect
and likely duration of the circumstances constituting the force
majeure;
b) shall use all reasonable endeavors to minimize the effect of the force
majeure on its performance of its obligations under this Agreement
including the making of any alternative arrangements for resuming the
performance of its obligations which may be practicable without
incurring material additional expense; and
c) shall, subject to clause 9.4, immediately after the cessation of the
force majeure, notify the other party thereof and resume full
performance of its obligations under this Agreement.
9.4 If any force majeure delays or prevents the performance of the obligations
of either party for a continuous period in excess of six months, the party not
so affected shall then be entitled to give notice to the affected party to
terminate this Agreement, specifying the date (which shall not be less than 30
Business Days after the date on which the notice is given) on which termination
will take effect. Such a termination notice shall be irrevocable, except with
the consent of both parties, and upon termination the provisions of clause 8.4
shall apply
10. FINAL PROVISIONS
10.1 The Agreement shall be in Vietnamese and English languages and all the
documentation related hereto shall be in Vietnamese and English languages.
10.2 This Agreement is the completed and unique agreement between the parties.
Some matters arising during the performance of this Agreement may be amended or
supplemented or replaced by an Annex to this Agreement with the consent of all
parties and such addition shall become an integral part of this Agreement.
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GLOBAL STEVIA CORP.
Per: /s/ Xxxx Xxxx Xxxxxx
--------------------------------------
Authorized Signatory
Name: Xxxx Xxxx Xxxxxx
Title: CEO
PLANT RESOURCE CENTER
Per: /s/ authorized signatory
--------------------------------------
Authorized Signatory
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SCHEDULE A
R&D SPECIFICATIONS
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