Attached files
Exhibit 10.1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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HANOVER HOLDINGS I, LLC, :
:
Plaintiff, : Index No. 156345/2013
:
v. :
:
:
STEVIA CORP., :
:
Defendant. :
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STIPULATION OF SETTLEMENT
Plaintiff, Hanover Holdings I, LLC ("Hanover"), on the one hand, and
Defendant, Stevia Corp. ("Stevia"), on the other hand, stipulate to the entry of
the Proposed Order attached hereto as Exhibit A (the "Proposed Order"), and
further stipulate and agree as follows:
1. Stevia is a corporation incorporated under the laws of the State of
Nevada, with its principal place of business located at 7117 US 31S,
Indianapolis, Indiana 46227. Stevia hereby acknowledges receipt of the Complaint
filed by Hanover on July 12, 2013, and agrees to waive any requirement that
Hanover formally serve Stevia with process. Stevia accepts service of process as
of the date of this Settlement Agreement.
2. Hanover and Stevia request that the Court enter an Order substantially
in the form of the Proposed Order.
3. Hanover owns bona fide claims in the total amount of $1,042,000 against
Stevia for non-payment of past-due debt for certain farming supplies provided to
Stevia (the "Claim"), which Hanover purchased from SG AgroTech Pte Ltd., a
creditor of Stevia (the "Original Creditor"), for a total purchase price of
$1,042,000, pursuant to a Receivable Purchase Agreement, dated as of July 11,
2013, between Hanover and the Original Creditor (the "Receivable Purchase
Agreement"), in which the Original Creditor sold, transferred, and assigned to
Hanover all right, title and interest of such Original Creditor with respect to
the Claim, including, without limitation, the right to bring the above-captioned
action against Stevia with respect to the Claim (the "Action"). The purchase
price for the Claim is payable to the Original Creditor in the manner set forth
in the Receivable Purchase Agreement. The Original Creditor issued an invoice to
Stevia for farming supplies provided to Stevia, payable upon receipt. Such
invoice has not been paid by Stevia and is past due in its entirety.
4. Stevia has not paid, and will not be able to pay in the near term, any
amounts due on the Claim. As a result, on July 12, 2013, Hanover commenced the
Action, which Action the parties now seek to settle by this Stipulation of
Settlement (the "Settlement Agreement").
5. Stevia desires to issue shares of Stevia's common stock (the "Common
Stock") in exchange for the release of the Claim and dismissal of the Action in
its entirety. Hanover is willing to accept such shares of Common Stock in
accordance with the terms of this Settlement Agreement, provided that (i) the
proposed exchange (including the issuance of the Common Stock pursuant to this
Settlement Agreement) is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), under Section
3(a)(10) of the Securities Act, which requires a finding from the Court that the
terms and conditions of the proposed exchange are procedurally and substantively
fair to Hanover prior to the issuance of the Common Stock pursuant to this
Settlement Agreement, and (ii) through such exemption under Section 3(a)(10) of
the Securities Act, Stevia shall be permitted to issue shares of Common Stock to
Hanover in exchange for the release of the Claim and dismissal of the Action
without registration under the Securities Act, and Hanover shall be permitted to
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immediately publicly resell such shares of Common Stock into the market without
restriction. Section 3(a)(10) of the Securities Act provides in its entirety as
follows:
Section 3 -- Classes of Securities under this Title
(a) Exempted securities. Except as hereinafter expressly provided, the
provisions of this title shall not apply to any of the following
classes of securities:...
10. Except with respect to a security exchanged in a case under title
11 of the United States Code, ANY SECURITY WHICH IS ISSUED IN
EXCHANGE FOR ONE OR MORE BONA FIDE OUTSTANDING securities, CLAIMS
or property interests, OR PARTLY IN SUCH EXCHANGE AND PARTLY FOR
CASH, WHERE THE TERMS AND CONDITIONS OF SUCH ISSUANCE AND
EXCHANGE ARE APPROVED, AFTER A HEARING upon the fairness of such
terms and conditions at which all persons to whom it is proposed
to issue securities in such exchange shall have the right to
appear, BY ANY COURT, or by any official or agency of the United
States, or by any State or Territorial banking or insurance
commission or other governmental authority expressly authorized
by law to grant such approval;
(Emphasis added.)
6. Hanover is the only party to whom the shares of Common Stock will be
issued pursuant to this Settlement Agreement, and is therefore the only party
entitled to notice of hearing and an opportunity to be heard in accordance with
Section 3(a)(10) of the Securities Act.
7. Hanover has agreed to the proposed settlement terms and conditions, and
believes that they are procedurally and substantively fair to Hanover, such that
Hanover is willing to enter into this Settlement Agreement. In addition,
Stevia's board of directors has considered the proposed settlement and has
resolved that its terms and conditions are fair to, and in the best interests
of, Stevia and its shareholders. Accordingly, both parties shall request the
Court to approve the fairness of the proposed terms and conditions of the
proposed exchange (including the issuance of the Common Stock pursuant to this
Settlement Agreement) (following the hearing referred to in the next sentence).
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8. The parties shall submit this Settlement Agreement to the Court and
shall request that the Court enter the Proposed Order approving this Settlement
Agreement at a hearing thereon as required by Section 3(a)(10) of the Securities
Act. Effective upon execution of the Proposed Order by the Court, this
Settlement Agreement shall become final and binding upon Stevia and Hanover, it
being hereby acknowledged and agreed that prior to such time this Settlement
Agreement is not binding upon Stevia and Hanover.
9. It is the intent and effect of this Settlement Agreement that the
Proposed Order, when signed, shall end, finally and forever (i) any claims to
payment or compensation of any kind or nature that Hanover had, now has, or may
assert in the future against Stevia arising out of the Claim, and (ii) any
claims, including, without limitation, for offset or counterclaim, that Stevia
had, now has, or may assert in the future against Hanover arising out of the
Claim.
10. In this regard, and subject to full and complete compliance with the
Proposed Order, effective upon the execution of the Proposed Order, each party
hereby releases and forever discharges the other party, including all of the
other party's employees, officers, directors, members, partners, agents,
affiliates, subsidiaries and attorneys, from any and all claims, demands,
obligations (fiduciary or otherwise), and causes of action, whether known or
unknown, suspected or unsuspected, arising out of, connected with, or incidental
to the Claim. Stevia shall not (and Stevia shall cause each of its employees,
officers, directors, members, partners, agents, affiliates, subsidiaries and
attorneys to not) disparage (or induce or encourage other persons to disparage)
Hanover or any of its employees, officers, directors, members, partners, agents,
affiliates, subsidiaries, attorneys or other Indemnified Persons (as defined
below).
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11. In full and final settlement of the Claim, no later than the first
trading day following the date of the Court's entry of the Proposed Order, time
being of the essence, Stevia will cause to be issued and delivered to Hanover or
its designee 7,500,000 shares of Common Stock, representing approximately 9.88%
of Stevia's outstanding shares of Common Stock (collectively, the "Settlement
Shares").
12. Further, the Settlement Shares will be subject to adjustment (as
described in paragraph 14 below) to reflect the intention of the parties that
the total number of shares of Common Stock issued to Hanover be based upon a
specified discount to the VWAP (as defined below) of the Common Stock for a
specified period of time subsequent to the Court's entry of the Proposed Order.
13. No later than the first trading day following the date that the Court
enters the Proposed Order approving this Settlement Agreement, time being of the
essence, Stevia shall: (i) immediately cause to be issued the number of shares
of Common Stock required by paragraph 11 above to Hanover's or its designee's
balance account with The Depository Trust Company (DTC) through the Fast
Automated Securities Transfer (FAST) Program of DTC's Deposit/Withdrawal At
Custodian (DWAC) system, without any restriction on transfer or resale, by
transmitting via facsimile and overnight delivery such irrevocable and
unconditional instruction to Stevia's stock transfer agent, together with a copy
of the Proposed Order executed by the Court, and (ii) if requested by Stevia's
stock transfer agent, cause its legal counsel in connection with the Action to
issue an opinion to Stevia's transfer agent, in form and substance acceptable to
Hanover and such transfer agent, that the shares of Common Stock to be issued
pursuant to the Proposed Order (a) shall be legally issued, fully paid and
non-assessable, (b) when issued in accordance with the Proposed Order shall be
exempt from the registration requirements of the Securities Act afforded by
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Section 3(a)(10) of the Securities Act and (c) may be issued without any
restriction on transfer or resale (such issuance, the "Initial DWAC Issuance,"
and the date upon which such issuance is complete and all of the Settlement
Shares have been received into Hanover's or its designee's account in electronic
form and fully cleared for trading, the "Initial DWAC Issuance Date"). Stevia
represents and warrants that no instruction other than such irrevocable and
unconditional instruction to Stevia's stock transfer agent referred to in this
paragraph 13 will be given by Stevia to its transfer agent with respect to such
shares of Common Stock, and that such shares of Common Stock shall otherwise be
freely transferable on the books and records of Stevia.
14. The total number of shares of Common Stock to be issued to Hanover or
its designee in connection with this Settlement Agreement and the Proposed Order
shall be adjusted on the trading day immediately following the Calculation
Period (as defined below) (the "True-Up Date"), as follows: (i) if the number of
VWAP Shares (as defined below) exceeds the number of Settlement Shares initially
issued, then Stevia will, as promptly as practicable (but subject in all cases
to the limitations set forth in paragraph 14.c below), cause to be issued and
delivered to Hanover or its designee, as DWAC shares, additional shares of
Common Stock equal to the difference between (x) the total number of VWAP Shares
and (y) the number of Settlement Shares, and (ii) if the number of VWAP Shares
is less than the number of Settlement Shares, then Hanover or its designee will
return to Stevia for cancellation that number of shares equal to the difference
between (x) the total number of VWAP Shares and (y) the number of Settlement
Shares issued in the Initial DWAC Issuance. The "Calculation Period" shall mean
the 120-consecutive trading day period (subject to extension as set forth below)
commencing on the trading day immediately following the Initial DWAC Issuance
Date, or such shorter consecutive trading day period immediately following the
Initial DWAC Issuance Date as Hanover shall determine in its sole discretion by
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written notice delivered to Stevia. Notwithstanding anything herein to the
contrary, the Calculation Period shall be extended for such number of trading
days equal to the number of trading days during which any one or more of the
following shall have occurred and be continuing: (i) trading in the Common Stock
shall have been suspended for more than one full trading day, (ii) the Common
Stock shall have been delisted from the OTCQB operated by OTC Markets Group Inc.
and is not immediately thereafter listed or quoted on the The NASDAQ Capital
Market, The NASDAQ Global Market, The NASDAQ Global Select Market, New York
Stock Exchange, the NYSE MKT, the NYSE Arca, the OTC Bulletin Board, or the
OTCQX operated by OTC Markets Group Inc., (iii) there shall have been imposed
any suspension of electronic trading or settlement services by The Depository
Trust Company, a subsidiary of The Depository Trust & Clearing Corporation, or
any successor thereto, with respect to the Common Stock, (iv) the Settlement
Shares or the VWAP Shares shall not be freely transferable on the books and
records of Stevia or there shall be any restriction on transfer or resale of the
Settlement Shares or the VWAP Shares for any reason, (v) a failure of Stevia to
file any report, schedule, registration, form, statement, information or other
document required to be filed by Stevia with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any Initial 8-K Filing or any Additional 8-K Filing (as such
terms are defined below) or any other material required to be filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, (vi) a failure of Stevia or its
stock transfer agent to deliver any Settlement Shares or VWAP Shares to Hanover
within three trading days after the applicable date on which Hanover is entitled
to receive such shares pursuant hereto, (vii) Stevia shall have filed for and/or
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shall be subject to any bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors instituted by or against Stevia, or (viii) Stevia is
in material breach or default of this Settlement Agreement (other than any
breach or default relating to any of the matters in clauses (i) through (vii)
above), and, if such breach or default is capable of being cured, such breach or
default is not cured within five trading days after notice of such breach or
default is delivered to Stevia. If Hanover shall notify Stevia that, due to the
limitations set forth in paragraph 14.c. below, all of the additional shares of
Common Stock required to be issued and delivered to Hanover or its designee
pursuant to this paragraph 14, if any, cannot be issued and delivered to Hanover
or its designee on a single trading day, then Stevia will cause to be issued and
delivered to Hanover or its designee, as DWAC shares, in a single issuance or in
multiple issuances, such additional shares of Common Stock at such times and in
such amounts as Hanover shall request from time to time from and after the
True-Up Date (subject in all cases to the limitations of paragraph 14.c. below),
until all VWAP Shares have been issued and delivered to Hanover or its designee.
If Hanover's right to receive VWAP Shares at any particular time is limited, in
whole or in part, by this paragraph and paragraph 14.c. below, all such VWAP
Shares that are so limited shall be held in abeyance for the benefit of Hanover
by Stevia until such time, if ever, as Hanover shall notify Stevia that its
right thereto would not result in Hanover exceeding the limitations set forth in
paragraph 14.c. below.
a. For all purposes of this Settlement Agreement, "VWAP Shares" means
such number of shares of Common Stock (rounded up to the nearest whole share)
equal to the sum of: (i) the quotient obtained by dividing (A) $1,042,000,
representing the total amount of the Claim, by (B) 65% of the average of the
lowest 40 trading volume weighted average prices of the Common Stock as reported
by Bloomberg L.P. (the "VWAP") over the Calculation Period; (ii) the quotient
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obtained by dividing (A) $22,500, representing (1) $25,000 of Hanover's legal
fees and expenses incurred in connection with the Action that Stevia has agreed
to pay less (2) $2,500 heretofore paid by Stevia, by (B) 100% of the VWAP over
the Calculation Period; and (iii) the quotient obtained by dividing (A) agent
fees of $83,360, by (B) 100% of the VWAP over the Calculation Period.
b. If, at any time and from time to time during the Calculation
Period, Hanover reasonably believes that the total number of Settlement Shares
previously issued to Hanover shall be less than the total number of VWAP Shares
to be issued to Hanover or its designee in connection with this Settlement
Agreement and the Proposed Order, Hanover may, in its sole discretion, deliver
one or more written notices to Stevia, at any time and from time to time during
the Calculation Period, by facsimile or email transmission, requesting that a
specified number of additional shares of Common Stock promptly be issued and
delivered to Hanover or its designee (subject in all cases to the limitations of
paragraph 14.c. below) and containing the calculation for the number of
additional shares of Common Stock requested to be so issued and delivered.
Within one trading day following delivery of each such notice, time being of the
essence, Stevia shall cause to be issued and delivered to Hanover or its
designee, in compliance with the procedure set forth in paragraph 13 above
(including, without limitation, issuance of the legal opinion to Stevia's
transfer agent, if required, at Stevia's sole cost and expense), the number of
additional shares of Common Stock requested to be so issued and delivered in the
notice (subject in all cases to the limitations of paragraph 14.c. below). Any
additional shares of Common Stock issued to Hanover or its designee pursuant to
this paragraph 14.b. will be considered Settlement Shares for purposes of any
calculation of the total number of shares to be issued by, or returned to,
Stevia pursuant to this paragraph 14.
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c. In no event shall the number of shares of Common Stock issued to
Hanover or its designee in connection with the settlement of the Claim pursuant
to this Settlement Agreement (either as Settlement Shares or VWAP Shares, or in
connection with any adjustment thereto pursuant to this Settlement Agreement),
when aggregated with all other shares of Common Stock then beneficially owned by
Hanover and its affiliates (as calculated pursuant to Section 13(d) of the
Exchange Act and the rules and regulations thereunder), result in the beneficial
ownership by Hanover and its affiliates (as calculated pursuant to Section 13(d)
of the Exchange Act and the rules and regulations thereunder) at any time of
more than 9.99% of the Common Stock. Neither Hanover nor Stevia may waive this
paragraph 14.c. For any reason at any time, upon the written or oral request of
Hanover, Stevia shall within one (1) business day confirm orally and in writing
to Hanover the number of shares of Common Stock then outstanding.
d. The provisions of this paragraph 14 shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of
this paragraph 14 to correct this paragraph 14 (or any portion hereof) which may
be defective or inconsistent with the intended beneficial ownership limitation
contained in paragraph 14.c. above or to make changes or supplements necessary
or desirable to properly give effect to such limitation.
15. Stevia hereby makes the following representations, warranties and
covenants:
a. The shares of Common Stock provided for above are duly authorized
and, when issued pursuant to the Proposed Order, will be duly and validly
issued, fully paid and nonassessable, free and clear of all liens, encumbrances
and preemptive and similar rights to subscribe for or purchase securities.
Stevia has reserved from its duly authorized capital stock 25,000,000 shares of
Common Stock for issuance pursuant to the terms of this Settlement Agreement. If
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at any time it appears reasonably possible that there may be insufficient
authorized or reserved shares to fully comply with the Proposed Order, Stevia
shall take all action required to promptly reserve additional shares of Common
Stock from its authorized shares and, if necessary, promptly take such actions
as are necessary or appropriate to increase its authorized shares so as to
ensure its ability to timely comply with the Proposed Order, and the Company may
not reserve or issue any shares of Common Stock to any other person unless and
until sufficient shares have been reserved for Hanover (except to the extent
that a person has the right to purchase shares of Common Stock on or prior to
the date of this Stipulation). The execution of this Settlement Agreement and
performance of the Proposed Order by Stevia and Hanover will not (i) conflict
with, violate, or cause a breach or default under any agreements between Stevia
and any creditor of Stevia as of the date hereof, or any affiliate thereof,
including, but not limited to, any agreement with the Original Creditor (or any
affiliate thereof) related to the debt comprising the Claim, or (ii) require any
waiver, consent, or other action of Stevia or any creditor of Stevia as of the
date hereof, including, but not limited to, the Original Creditor, or its
affiliates, that has not already been obtained in writing. Without limitation,
Stevia hereby waives any provision in any agreement related to the debt
comprising the Claim (x) requiring payments to be applied in a certain order,
manner, or fashion, or (y) providing for exclusive jurisdiction and venue in any
court other than this Court. Stevia has all necessary corporate power and
authority to execute, deliver and perform all of its obligations under this
Settlement Agreement. The execution, delivery and performance of this Settlement
Agreement by Stevia has been duly authorized by all requisite action on the part
of Stevia, including, without limitation, express approval by its board of
directors. This Settlement Agreement has been duly executed and delivered by
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Stevia and constitutes the legal, valid and binding obligation of Stevia,
enforceable against Stevia in accordance with its terms.
b. Stevia acknowledges and agrees, to the best of its knowledge, that
neither Hanover nor the Original Creditor, nor any of their respective
affiliates, (i) is or was an affiliate of Stevia within the last 90 days or (ii)
has or will, directly or indirectly, provide any consideration to or invest in
any manner in Stevia in exchange or consideration for, or otherwise in
connection with, the sale or satisfaction of the Claim other than pursuant to
the Proposed Order. The Original Creditor is not, directly or indirectly,
receiving any consideration from or being compensated in any manner by, and will
not at any time in the future accept any consideration or compensation from,
Stevia, any affiliate of Stevia, or any other person (except Hanover pursuant to
the Receivable Purchase Agreement between Hanover and the Original Creditor) for
or in connection with the sale or satisfaction of the Claim. Stevia further
acknowledges and agrees that (i) Hanover has no obligation of confidentiality to
Stevia and may sell any of its shares of Common Stock issued pursuant to the
Proposed Order at any time, including, without limitation, at any time during
the Calculation Period, and (ii) with respect to this Settlement Agreement and
the transactions contemplated hereby, (A) Hanover is acting solely in an arm's
length capacity, (B) Hanover does not make and has not made any representations
or warranties, other than those specifically set forth in this Settlement
Agreement, (C) Hanover has not and is not acting as a legal, financial,
accounting or tax advisor to Stevia, or agent or fiduciary of Stevia, or in any
similar capacity, and (D) any statement made by Hanover or any of Hanover's
representatives, agents or attorneys is not advice or a recommendation to
Stevia. Stevia is not, and since June 23, 2011 neither Stevia nor any of its
predecessors has been, a "shell company" as defined in Rule 405 under the
Securities Act, Stevia is subject to the reporting requirements of Section 13 or
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15(d) of the Exchange Act and has filed all reports and other materials required
to be filed by Section 13 or 15(d) of the Exchange Act, as applicable, during
the preceding 12 calendar months, and Stevia has filed current "Form 10
information" (within the meaning of Rule 144(i)(3)) with the Commission at least
12 calendar months previously reflecting its status as an entity that is not a
shell company.
c. Stevia has not, in the 12 months preceding the date of this
Settlement Agreement, received notice from any national securities exchange or
automated quotation system on which the Common Stock is listed or designated for
quotation to the effect that Stevia is not in compliance with the listing or
maintenance requirements of such national securities exchange or automated
quotation system. As of the date of this Settlement Agreement, Stevia is in
compliance with all such listing and maintenance requirements. Stevia, through
its stock transfer agent, currently participates in the DTC Fast Automated
Securities Transfer (FAST) Program of DTC's Deposit/Withdrawal At Custodian
(DWAC) system, and the Common Stock may be issued and transferred electronically
to third parties via the DTC Fast Automated Securities Transfer (FAST) Program
of DTC's Deposit/Withdrawal At Custodian (DWAC) system. Stevia has not, in the
12 months preceding the date of this Settlement Agreement, received notice from
DTC to the effect that a suspension of electronic trading or settlement services
by DTC with respect to the Common Stock is being imposed or is contemplated.
Neither any shares of Common Stock issuable hereunder nor any certificates
evidencing any of such shares of Common Stock (if a certificate therefor is
requested in writing by Hanover) shall bear any restrictive or other legends or
notations. Stevia shall not, and Stevia shall use its best efforts to cause all
other persons to not, issue any stop-transfer order, instruction or other
restriction with respect to any such shares of Common Stock. Upon issuance in
accordance herewith, such shares of Common Stock will be exempt from the
registration requirements of the Securities Act under Section 3(a)(10) of the
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Securities Act. All of such shares of Common Stock will be freely transferable
and freely tradable by Hanover without restriction. Stevia and its board of
directors have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, interested stockholder, business
combination, or other similar antitakeover provision under the certificate of
incorporation, bylaws or other organizational documents of Stevia, as currently
in effect, or the laws of the jurisdiction of its incorporation or otherwise
which is or could become applicable as a result of the transactions contemplated
by this Settlement Agreement, including, without limitation, Stevia's issuance
of shares of Common Stock hereunder and Hanover's ownership of such shares of
Common Stock, together with all other securities now or hereafter owned or
acquired by Hanover. Stevia and its board of directors have taken all necessary
action, if any, in order to render inapplicable any shareholder rights plan or
similar arrangement relating to accumulations of beneficial ownership of shares
of Common Stock or a change in control of Stevia or any of its subsidiaries. On
the date hereof and on the date of any issuance of Common Stock hereunder, all
stock transfer or other taxes (other than income or similar taxes) which are
required to be paid in connection with the offer, issuance and transfer of the
shares of Common Stock issuable hereunder will be, or will have been, fully paid
or provided for by Stevia, and all laws imposing such taxes will be or will have
been complied with.
d. Stevia shall take such action as Hanover shall reasonably determine
is necessary in order to qualify the shares of Common Stock issuable to Hanover
hereunder under applicable securities or "blue sky" laws of the states of the
United States for the issuance to Hanover hereunder and for resale by Hanover to
the public (or to obtain an exemption from such qualification), and shall
provide evidence of any such action so taken to Hanover. Without limiting any
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other obligation of Stevia hereunder, Stevia shall timely make all filings and
reports relating to the offer and issuance of such shares of Common Stock
required under all applicable securities laws (including, without limitation,
all applicable federal securities laws and all applicable state securities or
"blue sky" laws), and Stevia shall comply with all applicable federal, state,
local and foreign laws, statutes, rules, regulations and the like relating to
the offering and issuance of such shares of Common Stock to Hanover.
e. Stevia shall promptly secure the listing or designation for
quotation (as the case may be) of all of the shares of Common Stock to be issued
to Hanover pursuant to this Settlement Agreement on each national securities
exchange and automated quotation system, if any, on which the Common Stock is
listed or designated for quotation (as the case may be) and shall use its
reasonable best efforts to maintain such listing or designation for quotation
(as the case may be) of all such shares of Common Stock on such national
securities exchange or automated quotation system for so long as Hanover or any
of its affiliates holds any shares of Common Stock. Stevia shall pay all fees
and expenses in connection with satisfying its obligations under this paragraph
15.e.
16. Hanover hereby makes the following representations, warranties and
covenants:
a. As of the date of this Settlement Agreement and during the 90
calendar days prior to the date of this Settlement Agreement, neither Hanover
nor any affiliate thereof is or was an officer, director, or 10% or more
shareholder of Stevia.
b. Until at least 180 days after the Calculation Period, neither
Hanover nor any of its affiliates shall (i) hold any short position in the
Common Stock or (ii) engage in or affect, directly or indirectly, any short sale
of the Common Stock.
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17. The representations, warranties, agreements and covenants in this
Settlement Agreement shall survive the execution and delivery hereof and the
consummation of the transactions contemplated hereby.
18. For so long as Hanover or any of its affiliates holds any shares of
Common Stock, neither Hanover nor any of its affiliates will: (i) vote any
shares of Common Stock owned or controlled by it, or solicit any proxies or seek
to advise or influence any person with respect to any voting securities of
Stevia; or (ii) engage or participate in any actions, plans or proposals that
relate to or would result in (a) Hanover or any of its affiliates acquiring
additional securities of Stevia, alone or together with any other person, which
would result in Hanover and its affiliates collectively beneficially owning, or
being deemed to beneficially own, more than 9.99% of the Common Stock or other
voting securities of Stevia (as calculated pursuant to Section 13(d) of the
Exchange Act and the rules and regulations thereunder), (b) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving Stevia or any of its subsidiaries, (c) a sale or transfer of a
material amount of assets of Stevia or any of its subsidiaries, (d) any change
in the present board of directors or management of Stevia, including any plans
or proposals to change the number or term of directors or to fill any existing
vacancies on the board, (e) any material change in the present capitalization or
dividend policy of Stevia, (f) any other material change in Stevia's business or
corporate structure, (g) changes in Stevia's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of Stevia by any person, (h) causing a class of securities of Stevia to
be delisted from a national securities exchange or to cease to be authorized to
be quoted in an inter-dealer quotation system of a registered national
securities association, (i) causing a class of equity securities of Stevia to
become eligible for termination of registration pursuant to Section 12(g)(4) of
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the Exchange Act or (j) taking any action, intention, plan or arrangement
similar to any of those enumerated above. The provisions of this paragraph may
not be modified or waived without further order of the Court.
19. The parties agree that, for the period from and after the date hereof
through and including May 2, 2014, and regardless of whether Hanover or its
affiliates then hold any debt or equity securities of Stevia, Hanover and its
affiliates shall have the exclusive right to enter into transactions with Stevia
whereby Stevia directly or indirectly issues Common Stock or Common Stock
equivalents to a party in exchange for outstanding securities, claims or
property interests, or partly in such exchange and partly for cash, in one or
more transactions carried out pursuant to Section 3(a)(9) or Section 3(a)(10) of
the Securities Act.
20. Prior to the earlier of (i) the opening time for trading stocks on
public securities exchanges located in New York City on the first trading day
immediately following the date of the Court's entry of the Proposed Order and
(ii) the Initial DWAC Issuance, time being of the essence, Stevia shall file a
Current Report on Form 8-K with the Securities and Exchange Commission (the
"SEC") pursuant to Section 13 or Section 15(d) of the Exchange Act disclosing
all of the material terms of this Settlement Agreement, including, without
limitation, the issuance of shares of Common Stock to Hanover pursuant to the
Proposed Order approving this Settlement Agreement, and disclosing all other
material, nonpublic information delivered to Hanover (or Hanover's
representatives or agents) by Stevia or any of its officers, directors,
employees, agents or representatives, if any, in connection with the Claim, the
Action, the Original Creditor or the transactions contemplated by this
Settlement Agreement, and attaching a copy of the Proposed Order and this
Settlement Agreement as exhibits thereto (the "Initial 8-K Filing"). From and
after the Initial 8-K Filing, neither Stevia nor any of its officers, directors,
17
employees, agents or representatives shall disclose any material non-public
information about Stevia to Hanover (or Hanover's representatives or agents),
unless prior thereto Stevia shall have filed a Current Report on Form 8-K with
the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act disclosing
all such material non-public information. In addition, Stevia shall file a
Current Report on Form 8-K with the SEC pursuant to Section 13 or Section 15(d)
of the Exchange Act prior to each issuance of additional shares of Common Stock
required to be issued and delivered to Hanover or its designee pursuant to
paragraph 14, if any, time being of the essence, disclosing the number of shares
so issued and delivered to Hanover and the date of issuance (each, an
"Additional 8-K Filing"). In the event of a breach of any of the foregoing
covenants in this paragraph 20 by Stevia, in addition to any other remedy
available to Hanover, Hanover shall have the right to make a public disclosure,
in the form of a press release, public advertisement, SEC filing or otherwise,
of the matters contemplated hereby without the prior approval by Stevia, or any
of its officers, directors, employees, stockholders or agents, and Hanover shall
not have any liability to Stevia, or any of its officers, directors, employees,
stockholders or agents, for any such disclosure.
21. Neither Stevia, its subsidiaries nor Hanover shall issue any press
releases or any other public statements with respect to the transactions
contemplated hereby; provided, however, Stevia shall be entitled, without the
prior approval of Hanover, to issue any press release or make other public
disclosure with respect to such transactions (i) in substantial conformity with
the Initial 8-K Filing and any Additional 8-K Filing and contemporaneously
therewith and (ii) as is required by applicable law and regulations (provided
that Hanover shall be consulted by Stevia in connection with any such press
release or other public disclosure prior to its release).
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22. Without the prior written consent of Hanover, Stevia shall not (and
shall cause each of its subsidiaries and affiliates to not) disclose the name of
Hanover in any filing (other than the Initial 8-K Filing and any Additional 8-K
Filing), announcement, release or otherwise.
23. Stevia hereby agrees to indemnify, defend and hold Hanover and each of
its present and former directors, officers, shareholders, members, managers,
investment managers, investment advisers, partners, employees, agents, advisors
and representatives (and any other persons with a functionally equivalent role
of a person holding such titles notwithstanding the lack of such title or any
other title) and each person or entity, if any, who controls Hanover within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, and each of their direct and indirect related persons (collectively, the
"Indemnified Persons") harmless with respect to all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and
expenses in connection therewith (regardless of whether any such Indemnified
Person is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), arising from or incident or related to (i) this
Settlement Agreement, (ii) any misrepresentation or breach of any representation
or warranty made by Stevia herein or in connection herewith, (iii) any breach of
any covenant, agreement or obligation of Stevia contained herein or in any
document entered into in connection herewith or (iv) any cause of action, suit,
proceeding or claim brought or made against such Indemnified Persons by a third
party or any shareholder of Stevia (including for these purposes a derivative
action brought on behalf of Stevia or any subsidiary thereof) or which otherwise
involves such Indemnified Person that arises out of relates to or results from
(a) the execution, delivery, performance or enforcement of this Settlement
19
Agreement or any document entered into in connection herewith or any other
agreement entered into with, or any instrument received from, Stevia or (b) the
status of such Indemnified Person or holder of shares of Common Stock issued
hereunder either as a holder of such shares of Common Stock or as a party to
this Settlement Agreement or any other agreement entered into with, or any
instrument received from, Stevia (regardless of any termination thereof)
(including, without limitation, as a party in interest or otherwise in any
action or proceeding for injunctive or other equitable relief). To the extent
that the foregoing undertaking by Stevia may be unenforceable for any reason,
Stevia shall make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities which is permissible under applicable law.
24. The parties to this Settlement Agreement represent that each of them
has been advised as to the terms and legal effect of this Settlement Agreement
and the Proposed Order provided for herein, and that the settlement and
compromise stated herein shall be final and conclusive forthwith, subject to the
execution of the Proposed Order by the Court and the other conditions stated
herein, and each attorney represents that his or her client has freely consented
to and authorized this Settlement Agreement.
25. Each party hereby irrevocably submits to the exclusive jurisdiction and
venue of the state or federal courts located in the City of New York, New York,
for the adjudication of the above-captioned action and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court or that
such suit, action or proceeding is improper or inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at its principal place of business and
20
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by law.
26. Stevia has irrevocably appointed Michael H. Ference, Esq., of Sichenzia
Ross Friedman Ference LLP, with an office located at 61 Broadway, 32nd Floor,
New York, New York 10006, as its agent to receive on behalf of Stevia service of
any legal process which may be served in all such suits, actions or proceedings.
Such service may be made by mail or delivery of such process to the Company in
care of such agent at the agent's address set forth above and the Company hereby
irrevocably authorizes and directs such agent to accept such service on behalf
of the Company. Service upon such agent in accordance with the foregoing shall
be deemed completed whether or not forwarded to or received by Stevia. If such
agent ceases to be able to act as such or to have an address in New York, New
York, Stevia agrees to irrevocably appoint a new agent acceptable to Hanover to
receive on behalf of Stevia service of any legal process and to deliver to
Hanover within 14 days a copy of a written acceptance of appointment by such
agent.
27. Upon entry of the Proposed Order approving this Settlement Agreement,
the Action shall be dismissed with prejudice. The Court shall retain
jurisdiction to enforce the terms of this Settlement Agreement.
28. Each party hereto waives a statement of decision, and the right to
appeal from the Order after its entry. Stevia further waives any defense based
on the rule against splitting causes of action. The prevailing party in any
motion to enforce the terms of this Settlement Agreement or the Proposed Order
shall be awarded its reasonable attorneys' fees, costs and expenses arising out
of or relating to such motion. Except as expressly set forth herein, each party
21
shall bear its own attorneys' fees, expenses and costs. This Settlement
Agreement may be executed in counterparts and by facsimile, pdf or other
electronic format, each of which shall constitute an original and all of which
together shall be deemed together as a single document.
DATED: July 16, 2013 GREENBERG TRAURIG, LLP
By: /s/ Timothy E. Di Domenico
--------------------------------------------
Timothy E. Di Domenico
MetLife Building
200 Park Avenue, 15th Floor
New York, New York 10166
(212) 801-2127
didomenicot@gtlaw.com
DATED: July 16, 2013 HANOVER HOLDINGS I, LLC
By: /s/ Joshua Sason
--------------------------------------------
Joshua Sason
Chief Executive Officer
DATED: July 16, 2013 SICHENZIA ROSS FRIEDMAN FERENCE LLP
By: /s/ Michael H. Ference
--------------------------------------------
Michael H. Ference
61 Broadway, 32nd Floor
New York, New York 10006
(212) 930-9700
mference@srff.com
DATED: July 16, 2013 STEVIA CORP.
By: /s/ George Blankenbaker
--------------------------------------------
George Blankenbaker
President, Secretary and Treasurer
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