EXHIBIT 10.3


 


CONFIDENTIAL MATERIAL OMITTED AND


FILED SEPARATELY WITH THE
SECURITIES AND


EXCHANGE COMMISSION.


“***” ASTERISKS DENOTE SUCH
OMISSIONS.


 


	
   

  	
  Supply Agreement

  
	
   

  	
   

  
	
  Date: June 23, 2010

  	
   

  
	
   

  	
   

  
	
  Supply Agreement

  	
   

  



 


between


 


S&W Seed Company and
subsidiaries,


25552 South Butte Avenue


Five Points, CA 93624

USA


 


as Supplier


 


and


 


PureCircle Sdn Bhd


Unit 19-03-02, 3rd Floor, PNB Damansara,


No.19, Lorong Dungun, Damansara Heights 

50490 Kuala Lumpur, Malaysia


 


as Customer


 


relating to


 


Supply of Stevia Leaves


 

















 


CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


THIS
AGREEMENT is dated as of June 23, 2010 and made


 


BETWEEN:


 


(1)           S&W Seed Company, and its subsidiaries, (the “Supplier”),
incorporated in Delaware, USA, whose registered office is at 25552 South Butte
Ave., Five Points, California, USA ; and


 


(2)           PureCircle
Sdn Bhd,
(the “Customer”), (Company No. 578803-K) a limited liability
company incorporated in Malaysia whose Malaysian registered office is at 3A-12,
Perdana The Place, No. 1 Jalan PJU 8/5G, Damansara Perdana, 47820 Petaling
Jaya, Selangor Darul Ehsan, Malaysia. 


 


WHEREAS:


 


(A)          The Supplier carries on the
business of engaging in agriculture and related ancillary businesses and
Supplier has competent techniques, capacity and qualifications for, and intends
to engage and invest in the growing of Stevia. Supplier has represented that it
has plans to conduct logistical services and encourage growers to develop commercial
scale propagation and stevia plantations.


 


(B)          The Customer carries on the
business of Stevia leaf purchasing, nursery operations and the extraction and
refining of Stevia based products (“Business”), and based on representation by
Supplier in recital (A) above is desirous to entrust Supplier to produce
Products (as defined herein) and purchase the Products from the Supplier for
that Business.


 


(C)         The Supplier is desirous to
plant Stevia Seedlings, encourage planting, provide technical support to the growers
and supply the Products only to the Customer to the exclusion of other
customers and the Customer is desirous to purchase all the volume produced by
Supplier on the terms and conditions as set out in this Agreement.


 


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 Malaysia.


 


“Companies
Act” means the Malaysian Companies Act 1965.


 


“Parties” means, collectively, the Supplier and the
Customer, and the term “Party” shall refer to either of them as the context may
require.


 


PC Initials: DW  S&W Initials: GTW


 


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COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


“Products” means the products set out in Schedule 1.


 


“Reb A” means Rebaudioside A.


 


“Specification” means the specification of
the Products set out in Schedule 2 or any other specification of the Products
agreed in writing between the Supplier and the Customer from time to time.


 


“Stevia Seedlings” means suitable stevia
planting materials (ie cutting/roots).


 


“Year” means any reference
to a “year” is to that year in accordance with the Gregorian calendar.


 


“US$” means the United States dollar


 


In this Agreement where the context admits:


 


(A)          “subsidiary” and “holding company”
shall have the same respective meanings as in the Companies Act and “Subsidiary”
shall mean a subsidiary of the Company ;


 


(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 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          Schedules


 


Each of the schedules shall have effect as if set
out herein.


 


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MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


2.            Ordering and Sale of the Products


 


2.1          During the continuance of this Agreement, the
Supplier shall sell and the Customer shall purchase all Products produced by
the Supplier from seeds, plants and plant materials sourced from Customer or
his agents, subject to the terms and conditions of this Agreement.


 


2.2          Customer will purchase Product produced in the
United States by the Supplier or his contractors, dry leaf for the first two
years under the same conditions of price, shipping terms, and quality as
defined in this agreement.


 


2.3          The Supplier shall sell the Products only to the
Customer to the exclusion of other customers on the terms and conditions as set
out in this Agreement subject to the availability of the Products produced by
the Supplier.  The Customer is obliged to
purchase all the Products produced and/or supplied by the Supplier subject to
clause 2.1, up to 130% of the volumes as described in clause 3.6.  If the Supplier produces volumes in excess of
130% of those described in clause 3.6 (“Excess Volumes”), then the Customer
shall have the right of first refusal to purchase said Excess Volumes.  The Customer shall, in good faith, endeavour
to purchase such Excess Volumes, but is not obliged to do so.  For all volumes for which the Customer does
not purchase within the period specified by the Supplier, the Supplier may sell
to another party provided that details of such Party is notified to the
Customer and such sale is made at the same terms and conditions as first
offered to the Customer.


 


2.4          Subject to Clause 2.3 above, if the Customer fails
to purchase all the Products from the Supplier, then the Customer shall be
deemed to be in breach of this contract pursuant to clause 8.2.


 


2.5          If the Supplier is unable to supply at least 50% of
the Products to the Customer as agreed to be supplied as describe in Appendix C
(Production Estimates), the Supplier shall be deemed to be in breach of this
contract pursuant to clause 8.2 (a) herein but the Supplier shall not be liable
to the Customer for any damages.


 


3.            Specification and Quantity of the Products


 


3.1          All Products sold by the Supplier to the Customer
pursuant to this Agreement shall conform in all respects to the Specification.


 


3.2          The Supplier must, at all times, follow the
national laws in the country in which it is operating. These laws include but
is not limited to labor, minimum pay, environmental, and the use of
agrichemicals.


 


3.3          The Supplier and the Customer shall review and
agree on or before 30th September of each Year on any subsequent
revisions to the Specification of the Products applicable for the forthcoming
Calendar Year. In the event both parties cannot come to an agreement on the
terms of the revisions to the Specifications of the Products, the provisions in
the Specification in Schedule 2 herein shall continue to apply.


 


3.4          The Supplier will permit the Customer or the
Customer’s representative at all reasonable times to enter the Supplier’s
premises and growing sites for the purpose of inspecting the 


 


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MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“***” ASTERISKS DENOTE SUCH OMISSIONS.


 


Products
and Stevia Seedlings and the processing, packaging and storage operation
(whether or not owned by the Supplier) relating to the Products and Stevia
Seedlings, and will as reasonably requested by the Customer, supply without
cost random samples of the Products and Stevia Seedlings for testing by the
Customer or its representatives, to ensure that the growing conditions of the
Stevia Seedlings and Products conform with the Customer’s requirements and that
the Products and Stevia Seedlings will meet with the Specifications.


 


3.5          The Supplier may consult with the Customer from
time to time during the continuance of this Agreement in order to ensure that
the Specification of the Products to be sold by the Supplier to the Customer is
acceptable to the Customer.  Any
amendments to the Specification or to the growing conditions of the Products
shall be agreed in writing by both Parties. The Customer shall provide
agronomic support to the Supplier as and when required by the Customer to do so
and the costs of such agronomic support shall be borne solely by the Customer.


 


3.6          Subject to clause 8.1, the Supplier and the
Customer shall review and on or before 30th September of each Year on the quantity of
the Products to be supplied by the Supplier to the Customer in the forthcoming
Year and the Supplier shall provide the Customer with prior written notice at
any time during the year following the revision if it has reason to believe
that it would be unable to fulfil its forecast volumes under this clause.


 


3.7          The Customer, may, at its discretion, provide the
Supplier with planting material, seedlings, plants, seeds, or other stevia
plants (hereafter “Planting Material”) for trial.  Because the quality characteristics of dried
leaf are determined not only by the planting material, but also by the
location, climate, and cultivation practices of the supplier, the Customer does
not warrant or guarantee that said Planting Material can or will meet the
quality specifications when grown by the supplier.


 


4.            Manufacture and Delivery of the Products


 


4.1          Delivery of the Products shall be at terms FOB port
of choice of the Customer, California, USA until such time as Customer shall
construct extraction facilities in the Americas.  The Customer shall, at their expense, import,
clear and provide all activities to nationalize the product into China.  The Supplier shall provide all necessary
documents required for Customer to export, to facilitate the timely clearing of
the product.  Supplier is to provide,
using an agreed upon sampling procedure, 
a representative sample of the export load via courier service for HPLC
analysis to Customer prior to delivery of product to port for approval by the Customer.


 


4.2          If for operational reasons the Customer requires
the delivery of the Product to an alternative port than the one selected by
Supplier, then the Customer shall give the Supplier one (1) month’s notice
in writing and the Customer is responsible for any additional shipping costs
above.  Subject to the provisions herein,
the Customer may, at any time, change the delivery location, at its discretion.


 


4.3          The Supplier shall ensure that the Products are
thoroughly inspected and meet the Specifications prior to the delivery of the
Products as described in clause 4.1. Anytime prior to shipping of the Products,
the Customer shall extract samples of the Product at the 


 


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S&W Initials: GTW


 


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MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


Supplier’s
warehouse and/or farms or any other warehouses and/or farms to be confirmed by
the Supplier to determine the quality of the Products. The Customer shall
confirm the quality of the Products in writing to enable the Supplier to issue
the invoices for the Customer’s payment and import and export of the Product
accordingly. If the Supplier is not satisfied with the test result provided by
the Customer, the Supplier reserves the right to obtain an independent test and
shall be liable for all such additional costs. In the event of inconsistencies
between the Customer’s test result and the independent test result, then the
results from a mutually agreed upon independent lab shall prevail. Such
confirmation of quality by the Customer and/or the independent test report
shall be final and neither the supplier nor the Customer is entitled to further
dispute the quality of the Products and/or to challenge the invoice amount.


 


4.4          Risk in, responsibility, property and title to the
Products shall pass to the Customer once the Products crosses the rail at the
Port of choice in California, USA (or other acceptable port).  Upon release of the Bill of Lading, 50%
payment for the crop shall be invoiced and immediately becomes due and payable,
the remaining 50% becomes due and payable by the Customer to the Supplier upon
clearing Guangzhou or Shenzen Port in China, (as per the payment terms in
clause 5.3). For the avoidance of doubt, the costs of unloading the Products
from the ship to the port of destination shall be borne by the Customer.


 


4.5          The delivery of the Products by the Supplier to the
Customer shall be in packing sizes and material agreed to by both parties in writing.
The Customer shall be entitled under this Agreement to net off the packaging
material weight. The cost for the packaging shall be paid by the Supplier.


 


4.6          If the Customer rejects any delivery of the
Products which is not in conformity with the Specification (“Defective Products”),
(without prejudice to clause 8.2 or 8.4) the Customer may still proceed to buy
the Defective Products from the Supplier at such price to be mutually agreed
between the Supplier and the Customer. In the event that the Customer does not
purchase the Defective Products (without any obligations or liability by the
Customer to the Supplier), then the following shall occur:


 


a)    The Supplier shall pay the Customer all the monies paid by the Customer
for the respective Products supplied by Customer to Supplier; and


 


b)    Supplier can sell the same to such third party provided the proceeds
from that sale shall be utilised in priority to pay the Customer all the monies
paid by the Customer for the respective Products; all remaining proceeds will
be paid to the Supplier.


 


5.            Price of the Products and Stevia Seedlings
and Payment


 


5.1          The initial price to be charged by the Supplier to
the Customer in respect of the Products is as set out in Schedule 3. The price
will be revised on yearly basis following the first two years of the contract.


 


5.2          Subject to Schedule 3 and clause 8.3, the Supplier
and the Customer shall review and on or before 30th September of each Year on any subsequent
revisions to the Price.  The first
revision shall be by 30th September, 2012, for prices in effect January 1st, 2013.  The 


 


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CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


Supplier
and Customer shall not act unreasonably to frustrate or terminate the
negotiations of the pricing mechanism of the Products for the forthcoming year.


 


5.3          The Customer hereby agrees and covenants to
forthwith pay to the Supplier the amount stated in the invoices and ensures
that the Supplier receives such payment within fifteen (15) Working Days from
the date of the release of the Bill of Lading for the Products, 50% when it
crosses the rail from the dock to ship and the remaining 50% when Product
crossing from ship into the port of destination (provided that the Customer
reserves the right to set off the payment against the Defective Products),
failing which the Customer shall pay to the Supplier late interest payment of
five percentage (5%) per annum on the outstanding amount from the date the
payment is due to the date of full settlement.


 


5.4          If the Customer fails to pay for the Products
together with the late interest payment, if any, by the time stipulated in
Clause 5.2 and 5.3 herein, the Customer shall be deemed to be in breach of this
agreement and the Supplier may choose not to supply any of the Products to the
Customer until all outstanding invoices are paid by the Customer (subject that
the Products cannot be supplied to any third party without the written approval
of the Customer) and/or to terminate this agreement.


 


6.            Confidentiality


 


6.1          Subject to the provisions
of clauses 6.2 and 6.3, 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.


 


6.2          Permitted disclosures


 


Each party may disclose confidential information
which would otherwise be subject to clause 6.1 if, and only to the extent that
it can demonstrate that:


 


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COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


(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 6.1;


 


Provided that any such disclosure shall not be made
without prior consultation with the party from whom the confidential
information was obtained.


 


6.3          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 6.1 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.


 


Further to the
above, the Customer shall prepare a Contract Verification Letter for this
agreement for general disclosure by the Supplier for verification of this
agreement.


 


6.4          Survival of restrictions


 


The restrictions contained in this contract shall
survive the termination of this Agreement and shall continue for two years from
the date of termination.


 


7.            Warranties


 


The Supplier hereby
separately represents warrants and undertakes for itself to and with the
Customers and its successors in title as follows:


 


(A)          The Supplier 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 the Supplier which has been or would be
contravened by the execution and delivery of this Agreement or by the
performance or observance by the Supplier of any of the terms hereof.


 


The Customer hereby
separately represents warrants and undertakes for itself to and with the
Supplier and its successors in title as follows:


 


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COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


(A)          The Customer 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 the Customer which has been or would be
contravened by the execution and delivery of this Agreement or by the
performance or observance by the Customer of any of the terms hereof.


 


8.            Term and Termination


 


8.1          This Agreement shall come into force on May 31,
2010 and, subject to earlier termination pursuant to clauses 12.4, 8.2 or 8.3
below, shall continue in force for a period of five (5) Years (“Term”) but
the price, specifications, and quantity of the Products to be supplied by the
Supplier to the Customer shall be negotiated by the parties on a yearly basis.


 


8.2          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, 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.


 


8.3          The Customer is at liberty to terminate the
Agreement without any liability whatsoever to the Supplier if the review of the
Specifications (as ascribed in clause 3.2 hereto); or the Pricing (as ascribed
in clause 5.2 hereto) is not agreed between the Supplier and the Customer in writing
at least 60 days prior to the end of each Year.


 


8.4          Consequences of Termination


 


Upon termination in accordance with this clause 8
or clause 12.4:


 


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(A)          the rights and obligations of the parties under
this Agreement shall terminate and be of no future effect, except that clauses
1, 6 and 11 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.


 


9.            Limitation of Liability


 


9.1          The provisions of this clause 9 set out the entire
financial liability of the Supplier (including any liability for the acts or
omissions of its employees, agents and sub-contractors) to the Customer 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 the supplier;


 


(D)          voluntary or involuntary recall of the Products
only as it pertains to any specific act of negligence traceable to the
supplier;


 


10.          Provisions relating to this Agreement


 


10.1        Assignment


 


Either party must have the prior written consent of
the other party to assign all or any part of its rights and benefits under this
Agreement to a third party.  No consent
shall be required for such an assignment to any subsidiary, Affiliate, or
holding company of either party to its affiliate so long as the assignment does
not result in a change to the conditions of the agreement in any way.


 


10.2        Sub-contracting


 


The Supplier shall
be entitled to carry out its obligations under this Agreement through agents or
sub-contractors.


 


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10.3         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.


 


10.4         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.


 


10.5         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.


 


10.6         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.


 


10.7         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 


 


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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 10.8(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 United States of America , 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 the United States
of America, 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 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


 


(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 10.8(B) are, subject to clause 10.8(D):


 


Name:     SW
SEED COMPANY


 


For the attention of:  Chief Executive Officer


 


Address:


 


25552 South Butte Avenue


Five Points, CA 93624


 


Mailing Address:


P.O. Box 235


Five Points, CA 93624


 


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CONFIDENTIAL
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COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


Name:     PureCircle Sdn. Bhd


 


For the attention
of: Vice President Leaf Procurement


 


Address:


Unit 19-03-02, 3rd Floor


PNB Damansara


No. 19, Lorong Dungun


50490  Kuala Lumpur


Malaysia


Facsimile
number:
+603 20937333


E-mail address:


 


(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 10.8(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.


 


10.8         Relationship of the parties


 


(A)          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
the agent of any other party for any purpose.


 


(B)           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.


 


11.           Law and Jurisdiction


 


11.1         USA law


 


This Agreement shall be governed by, and construed
in accordance with, USA law.


 


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Initials: GTW


 


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CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


11.2         The Supplier shall
comply strictly with all applicable requirements relating with occupational
safety and health legislation or similar laws in the United States, and the
relevant rules and regulations thereunder.


 


11.3         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 US,
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.


 


11.4         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 JAMS system 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 Seattle,
USA;


 


(3)        the language to be used in the arbitral
proceedings shall be English.


 


12.           Force Majeure


 


12.1         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 12.2) and the time for performance of the relevant obligation(s) shall
be extended accordingly.


 


12.2         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:


 


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Initials: GTW


 


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CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.


 


(A)          any strike, lockout or other industrial
action,; any destruction, permanent breakdown, malfunction or damage of or to
any premises, plant, equipment 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.


 


12.3         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 12.4, immediately
after the cessation of the force majeure, notify the other party thereof and
resume full performance of its obligations under this Agreement.


 


12.4         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 8.3 shall apply


 


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MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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IN WITNESS whereof each of the parties has executed
this Agreement in a manner binding upon it the day and year first above
written.


 


 


	
  SIGNED BY Dorn Wenmwger

  	
  )

  	
  /s/ Dorn Wenmwger

  
	
   

  	
  )

  	
   

  
	
  FOR AND BEHALF OF

  	
  )

  	
   

  
	
  PURECIRCLE SDN. BHD.

  	
  )

  	
   

  
	
  in the presence of :-  Annie Wong

  	
  )

  	
  /s/ Annie Wong

  
	
  Dated:
                    ,
  2010

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED BY Grover T. Wickersham

  	
  )

  	
  /s/ Grover T. Wickersham

  
	
   

  	
  )

  	
   

  
	
  FOR AND BEHALF OF

  	
  )

  	
   

  
	
  SW SEED COMPANY

  	
  )

  	
   

  
	
  in the presence of :-  Debra K. Weiner

  	
  )

  	
  /s/ Debra K. Weiner

  
	
  Dated: July 27, 2010

  	
   

  	
   

  



 


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SCHEDULE
1: PRODUCTS


 


1.             Dry stevia leaves


 


SCHEDULE
2: SPECIFICATION OF PRODUCTS


 


	
  Item

  	
   

  	
  Description

  	
   

  	
  Specifications

  
	
  1.

  	
   

  	
  Major Steviol Glycosides  (Major Steviol Glycosides
  defined as Stevioside, Rebaudioside A, Rebaudioside C and Dulcoside A)

  	
   

  	
  Not less than ***%

  
	
  2.

  	
   

  	
  Rebaudioside A

  	
   

  	
  Not less than a total of ***% of dry weight
  (NOTE: ***% TSG x ***% Reb A or equivalent to equal not less than ***%)

  
	
  3.

  	
   

  	
  Moisture

  	
   

  	
  ***% by weight, otherwise price shall be adjusted
  accordingly, but not to exceed ***%

  
	
  4.

  	
   

  	
  Impurities  (Impurities include foreign material, e.g. stevia stems,  sand, etc.)

  	
   

  	
  Not more than ***% by weight

  
	
  5.

  	
   

  	
  Pesticides or chemical residue

  	
   

  	
  ***.

  
	
  6.

  	
   

  	
  Texture

  	
   

  	
  Greenish colour

  
	
  7.

  	
   

  	
  Smell

  	
   

  	
  Specific to dry stevia leaves

  
	
  8.

  	
   

  	
  Packing size

  	
   

  	
  35-50 kg per bundle

  



 


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SCHEDULE
3: PRICE


 


	
  Item

  	
   

  	
  Price

  
	
   

  	
   

  	
   

  
	
  Product

  	
   

  	
  For all leaf that meets the specification, the
  agreed price is as per below.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Price for 2011 and 2012 this contract will be no
  less than $*** per Kg of dried leaf meeting the minimum specifications, up to
  a maximum of *** metric tons per calendar year.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All Product in excess
  of the quantity for which Supplier is being provided a minimum price
  guarantee will be priced at a to be agreed upon price.

  
	
   

  	
   

  	
   

  
	
  Product below
  specification

  	
   

  	
  For leaf that does not
  meet specification, we will reduce the standard leaf price as per examples
  shown below.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Example; moisture
  specification is ***% - if the actual moisture content of the leaves is ***%
  we will reduce the price to compensate for the increased moisture content.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Likewise for TSG and
  Reb A. The Customer reserves the right to decrease standard leaf per kilo
  prices if actual TSG and Reb A content do not meet minimum specifications as
  set out in this agreement.

  



 


PC Initials: DW  S&W
Initials: GTW