Exhibit 10.1
Date: 1st day of November 2011
Management and Off-Take Agreement
by and between
Stevia Corp.
and
Growers Synergy Pte Ltd
relating to
Stevia Cultivation in Asia
THIS AGREEMENT is made and entered into on the 1st day of November 2011
("Effective Date")
BETWEEN:
STEVIA CORP., a publicly traded corporation (OTCBB: STEV) organized under
the laws of the State of Nevada of the United States, whose corporate
headquarters is located at 0000 XX 00 X, Xxxxxxxxxxxx, XX 00000 XXX
("COMPANY")
and
GROWERS SYNERGY PTE. LTD., a corporation with company registration number
200920853Z organised under the laws of Singapore, having its registered
xxxxxx xxxxxxx xx 00 Xxxx Xxx Xxxx, Xxxxxxxxx 000000 ("GSPL")
WHEREAS:
(A) Company is developing proprietary Stevia farm systems from plant breeding
to good agricultural practices to post-harvest techniques and Company plans
to invest heavily in research and development and intellectual property
acquisition and provide farm management services to contract growers and
other industry growers; and
(B) GSPL is a regional agribusiness company based in Singapore that operates
its own farms as well as provides farm management services and guaranteed
off-take agreements to contract farmers.
(C) Company wishes to engage GSPL to supervise Company's farm management
operations and provide back-office and regional logistical support; and
(D) Both Parties have mutually agreed to the farm management Objectives, Roles,
Staff Assignment, Support and Budget as set out in "APPENDIX A" hereinafter
referred to as the "SERVICES"; and
(E) GSPL desires to purchase the multi/inter-crops that Company produces under
GSPL's farm management supervision.
(F) Both Parties have mutually agreed to the purchase and sell of the
multi/inter-crops under terms as set out in "APPENDIX B".
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"Business Day" means a day, other than a Saturday or Sunday, on which banks are
open for ordinary banking business in Singapore.
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"Companies Act" means the Singapore Companies Act.
"Parties" means, collectively, the Company and GSPL, and the term "Party" shall
refer to either of them as the context may require.
"Year" means any reference to a "year" is to that year in accordance with the
Gregorian calendar.
"USD" means the United States dollar.
In this Agreement where the context admits:
(A) "subsidiary", "affiliate" and "holding company" shall have the same
respective meanings as in the Companies Act and "Subsidiary" shall mean a
subsidiary of the Company; and
(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; and
(C) references to clauses, appendixes and schedules are references to the
clauses and appendixes of and schedules to this Agreement and references to
this Agreement include the appendixes, schedules and the Agreed Form
documents; and
(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; and
(E) "person" includes any individual, partnership, body corporate, corporation
sole or aggregate, state or agency of a state, and any unincorporated
association or organisation, 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 APPENDIXES & SCHEDULES
Each of the appendixes and schedules shall have effect as if set out herein.
2. ENGAGEMENT
2.1 Company agrees to engage GSPL to provide the Services based on United States
Dollars.
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2.2 The engagement will initially focus on Vietnam and Indonesia but may be
amended from time to time to include other locations and countries as mutually
agreed by both Parties.
2.3 GSPL agrees to purchase all multi/inter-crops produced under its farm
management supervision on terms as set out in this Agreement.
3. BUDGET, PAYMENTS & STAFFING
3.1 The Services budget is composed of a fixed monthly fee in USD and shall be
paid to GSPL as set out in APPENDIX A. GSPL is responsible for all related
Expenses to fulfil its deliverables as set out in APPENDIX A.
3.2 GSPL shall assign certain Services staff ("GSPL STAFF"), back office support
and logistical support as set forth in APPENDIX A. The Company shall hire the
additional workers necessary to complete the Services. The Company shall assign
such Services workers to work under the direction of GSPL staff. The Company
shall make best efforts to involve GSPL in the hiring process of workers to
support the Services and GSPL shall make best efforts to participate in the
hiring process. The process of hiring and on-the-job orientation and the
respective roles of each Party to support this process shall be mutually agreed
upon.
3.3 When directing Company workers, GSPL shall comply strictly with all
applicable requirements relating to occupational safety and health legislation
or similar laws in the country of operations, and the relevant rules and
regulations thereunder. In addition, GSPL shall strive to incorporate higher
international standards where applicable and appropriate and not in conflict
with local rules and regulations.
4. RELATIONSHIP OF THE PARTIES
4.1 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.
4.2 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.
5. TECHNOLOGY PROVIDER
5.1 Company has separately entered into an agreement with Agro Genesis Pte Ltd
("AGPL") to be its technology partner. GSPL shall follow protocol's set out by
AGPL when conducting the Services and shall refer to AGPL for technical
directions.
6. MULTI/INTER-CROPS
6.1 Prospective grower fields ("Fields") shall be surveyed by both AGPL and GSPL
to determine the most efficient crop mix that will meet both the agronomic
environment and market demand. Upon mutual agreement of the crop mix, Company
and GSPL shall enter into an off-take agreement specific to the Fields according
to terms as set out in APPENDIX B.
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7. CONFIDENTIALITY
7.1 Subject to the provisions of clauses 7.2 and 7.3, 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.
7.2 PERMITTED DISCLOSURES
Each party may disclose confidential information which would otherwise be
subject to clause 7.1 if, and only to the extent that it can demonstrate that:
(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 7.1;
provided that any such disclosure shall not be made without prior consultation
with the party from whom the confidential information was obtained.
7.3 DISCLOSURES TO CERTAIN PARTIES
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 7.1 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.
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7.4 SURVIVAL OF RESTRICTIONS
The restrictions contained in this clause shall survive the termination of this
Agreement and shall continue for two years from the date of termination.
8. WARRANTIES
The Company hereby separately represents warrants and undertakes for itself to
and with GSPL and its successors in title as follows:
A) The Company has full legal right, power and authority to execute, deliver
and perform its obligations under this Agreement; and
B) There is no provision of any existing contract, agreement or instrument
binding the Company which has been or would be contravened by the execution
and delivery of this Agreement or by the performance or observance by the
Company of any of the terms hereof.
GSPL hereby separately represents warrants and undertakes for itself to and with
the Company and its successors in title as follows:
A) GSPL has full legal right, power and authority to execute, deliver and
perform its obligations under this Agreement; and
B) There is no provision of any existing contract, agreement or instrument
binding GSPL which has been or would be contravened by the execution and
delivery of this Agreement or by the performance or observance by GSPL of
any of the terms hereof.
9. TERM AND TERMINATION
9.1 This Agreement shall come into force on the Effective Date and, subject to
earlier termination, shall continue in force for a period of two (2) years
("Term") and shall be extended to be consistent with any future amended Services
and its mutually agreed upon time frame ("Extended Term").
9.2 Company may terminate this Agreement forthwith without cause by giving 30
(Thirty) days written notice to GSPL.
9.3 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, administrative receiver or administrator appointed
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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.
9.4 CONSEQUENCES OF TERMINATION
Upon termination in accordance with this clause 9 or clause 13.4:
(A) the rights and obligations of the Parties under this Agreement shall
terminate and be of no future effect, except that clauses 1, 6, 7 and 12
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;
(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.
10. LIMITATION OF LIABILITY
10.1 The provisions of this clause 10 set out the entire financial liability of
Company (including any liability for the acts or omissions of its employees,
agents and sub-contractors) to GSPL in respect of:
(A) any breach of this Agreement; and
(B) any representation, statement or tortuous act or omission including
negligence arising under or in connection with this Agreement;
(C) Product liability (for the purposes of this clause 10, Product shall refer
to those agricultural products used by the Services and supplied by
Company), Product safety only as it pertains to any specific act of
negligence traceable to Company;
(D) voluntary or involuntary recall of Products only as it pertains to any
specific act of negligence traceable to Company;
10.2 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.
11. PROVISIONS RELATING TO THIS AGREEMENT
11.1 ASSIGNMENT
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.
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11.2 ENTIRE AGREEMENT
(A) 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.
(B) 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.
(C) No variation of this Agreement shall be effective unless made in writing
and signed by each of the parties.
11.3 RIGHTS ETC CUMULATIVE AND OTHER MATTERS
(A) 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.
(B) 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.
(C) 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.
11.4 COSTS
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.
11.5 INVALIDITY
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.
11.6 COUNTERPARTS
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.
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11.7 NOTICES
(A) 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.
(B) Any such notice shall be addressed as provided in clause 11.8(C) and may
be:
(1) personally delivered, in which case it shall be deemed to have been
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
(2) 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
(3) 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;
(4) sent by facsimile, in which case it shall be deemed to have been given
when dispatched, subject to confirmation of uninterrupted transmission
by a transmission report provided that any notice dispatched 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
(5) 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;
(C) The addresses and other details of the parties referred to in clause
11.8(B) are, subject to clause 11.8(D):
Name: Stevia Corp.
For the attention of: Xxxxxx Xxxxxxxxxxxx, President
Address: 0000 XX 00 X
Xxxxxxxxxxxx, XX 00000 XXX
Facsimile number: x(0) 000-000-0000
E-mail address: xxxxxx@xxxxxx.xx
Name: Growers Synergy Pte. Ltd.
For the attention of: Xxxxxxx Xxx
Address: 00 Xxxx Xxx Xxxx
Xxxxxxxxx 000000
Facsimile number: x(00) 00000000
E-mail address: xxxxxxxx@xxxxxxx-xxxxxxx.xxx
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(D) Any Party to this Agreement may notify the other party of any change to the
address or any of the other details specified in clause 11.8(C), 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.
12. LAW AND JURISDICTION
12.1 SINGAPORE LAW
This Agreement shall be governed by, and construed in accordance with, Singapore
law.
12.2 JURISDICTION
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
the non-exclusive jurisdiction of the Singapore courts and waives any objection
to Proceedings in such courts on the grounds of venue or on the grounds that
Proceedings have been brought in an inappropriate forum.
12.3 ARBITRATION
(A) Any dispute or difference arising out of or in connection with this
Agreement, including any question regarding its existence, validity or
termination and regardless of the nature of such dispute or difference,
shall be referred to and finally resolved by arbitration under the
Singapore International Arbitration Centre which Rules are deemed to be
incorporated by reference into this Clause, and:
(1) the number of arbitrators shall be three, one of whom shall be
appointed by the Party asserting a claim against the other Party, one
of whom shall be appointed by the Party against whom a claim has been
asserted, and the third of whom shall be selected by mutual agreement,
if possible, within thirty days of the selection of the second
arbitrator and failing which by the administering authority. In the
event the Party against whom a claim has been asserted fails to
appoint the second arbitrator within 15 days after the first
arbitrator is appointed by the Party asserting a claim, then the
administering authority shall select the second and third arbitrators
after expiration of the said 15 days;
(2) the seat of arbitration shall be Singapore; and
(3) the language to be used in the arbitral proceedings shall be English.
13. FORCE MAJEURE
13.1 EFFECT OF FORCE MAJEURE
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 13.2) and the time for
performance of the relevant obligation(s) shall be extended accordingly.
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13.2 DEFINITION OF FORCE MAJEURE
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 labour, 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.
13.3 OBLIGATIONS OF AFFECTED PARTY
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 endeavours to minimise 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 13.4, immediately after the cessation of the force
majeure, notify the other party thereof and resume full performance of its
obligations under this Agreement.
13.4 TERMINATION FOR FORCE MAJEURE
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 9.3
shall apply
14. FINAL PROVISIONS:
14.1 The Agreement shall be in the English language and all the documentation
related hereto shall be in the English language.
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14.2 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.
THIS SECTION OF THE PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, each of the Parties has executed this Agreement in a manner
binding upon it as of the Effective Date set forth above.
STEVIA CORP. GROWERS SYNERGY PTE. LTD.
/s/ Xxxxxx Xxxxxxxxxxxx /s/ Xxxxxx Xxx
--------------------------------- -----------------------------------
Authorised Signature Authorised Signature
Xxxxxx Xxxxxxxxxxxx Xxxxxx Xxx
President Director
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