nlef_ex1021.htm


    Exhibit
10.21

     

    NEW
LEAF BRANDS, INC.

     

     

    
      	No. N-153	  $50,000


    

     

    Subordinated
Note

     

    


    New Leaf
Brands, Inc., a Nevada corporation (the “Company”), for value
received, hereby promises to pay to the order of O. Lee Tawes III or the
subsequent registered holder of this Note (the “Payee”) the principal
sum of $50,000, or such lesser amount as shall at such time be outstanding
hereunder (the “Principal
Amount”).  The entire Principal Amount shall be due and payable
upon demand by the Payee.

     

    This Note
shall accrue interest at the rate of 10% per annum calculated on the basis of
360 days per annum.

     

    Each
payment by the Company pursuant to this Note shall be made without set-off or
counterclaim and shall be made in lawful currency of the United States of
America and in immediately available funds.

     

    The
Company (i) waives presentment, demand, protest or notice of any kind in
connection with this Note and (ii) agrees to pay to the Payee, on demand, all
costs and expenses (including reasonable legal fees and expenses) incurred in
connection with the enforcement and collection of this Note.

     

    6. Prepayment.  The
Principal Amount of this Note may be prepaid by the Company in whole or in part
at any time without penalty.

     

    7. Computation of
Interest.  All computations of interest hereunder shall be made
on the basis of a 360-day year, consisting of twelve (12) thirty (30) calendar
day periods, and shall accrue daily (including the first day but excluding the
last day during which any such Principal Amount is outstanding).

     

    A. Base Interest
Rate.  Subject to Section 2B below, the outstanding Principal
Amount shall bear interest at the simple rate of ten percent (10%) per
annum.

     

    B. Maximum
Rate.  In the event that it is determined that, under the laws
relating to usury applicable to the Company or the indebtedness evidenced by
this Note (“Applicable
Usury Laws”), the interest charges and fees payable by the Company in
connection herewith or in connection with any other document or instrument
executed and delivered in connection herewith cause the effective interest rate
applicable to the indebtedness evidenced by this Note to exceed the maximum rate
allowed by law (the “Maximum Rate”), then
such interest shall be recalculated for the period in question and any excess
over the Maximum Rate paid with respect to such period shall be credited,
without further agreement or notice, to the Principal Amount outstanding
hereunder to reduce said balance by such amount with the same force and effect
as though the Company had specifically designated such extra sums to be so
applied to principal and the Payee had agreed to accept such extra payment(s) as
a premium-free prepayment.  All such deemed prepayments shall be
applied to the principal balance payable at maturity.  In no event
shall any agreed-to or actual exaction as consideration for this Note exceed the
limits imposed or provided by Applicable Usury Laws in the jurisdiction in which
the Company is resident applicable to the use or detention of money or to
forbearance in seeking its collection in the jurisdiction in which the Company
is resident.

     

    
      
         


      

      
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    8. Covenants of
Company.

     

    A. Affirmative
Covenants.  The Company covenants and agrees that, so long as
this Note shall be outstanding, it will perform the obligations set forth in
this Section 3A:

     

    (i) Taxes and
Levies.  The Company will promptly pay and discharge all
material taxes, assessments, and governmental charges or levies imposed upon the
Company or upon its income and profits, or upon any of its property, before the
same shall become delinquent, as well as all material claims for labor,
materials and supplies which, if unpaid, might become a lien or charge upon such
properties or any part thereof; provided, however, that the
Company shall not be required to pay and discharge any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings and the Company shall set aside on its books
adequate reserves in accordance with generally accepted accounting principles
(“GAAP”) with
respect to any such tax, assessment, charge, levy or claim so
contested.

     

    (ii) Maintenance of
Existence.  The Company will do or cause to be done all things
reasonably necessary to preserve and keep in full force and effect its corporate
existence, rights and franchises and comply with all laws applicable to the
Company, except where the failure to comply would not have a material adverse
effect on the Company or otherwise in connection with an acquisition of the
Company.

     

    (iii) Books and
Records.  The Company will at all times keep true and correct
books, records and accounts reflecting all of its business affairs and
transactions in accordance with GAAP.

     

    (iv) Notice of Certain
Events.  The Company will give prompt written notice (with a
description in reasonable detail) to the Payee of the occurrence of any Event of
Default (as defined herein) or any event which, with the giving of notice or the
lapse of time, would constitute an Event of Default.

     

    (v)
 Use of
Proceeds.  The Company agrees to use the proceeds from the
issuance of this Note for working capital.

     

    B. Negative
Covenants.  The Company covenants and agrees that, so long as
this Note shall be outstanding, it will perform the obligations set forth in
this Section 2B, except as consented to in writing by the Payee:

     

    (i) Liquidation,
Dissolution. The Company will not liquidate or dissolve or consolidate
with, or merge into or with, any corporation or entity, except if the Company is
the surviving corporation of such merger or consolidation and no Event of
Default shall occur as a result thereof.

     

    (ii) Proration of
Payments.  The Company shall not make or permit any payment or
other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of the Principal Amount or interest payable hereunder in
excess of the Payee’s pro
rata share of payments then being made in respect of all
Notes.

     

    (iii) Dividends.  The
Company will not declare or pay any cash dividends or distributions on any of
its outstanding common stock until this Note is paid in full.

     

    9. Events of
Default.

     

    A. The term
“Event of
Default” shall mean any of the events set forth in this Section
4A:

     

    (i) Non-Payment of
Obligations.  The Company shall default in the payment of the
Principal Amount when and as the same shall become due and payable, whether by
acceleration or otherwise, which default shall continue uncured for three (3)
business days.

     

    
      
         


      

      
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    (ii) Non-Performance of
Affirmative Covenants.  The Company shall default in any
material respect in the due observance or performance of any covenant set forth
in Section 2A, which default shall continue uncured for twenty (20) business
days.

     

    (iii) Non-Performance of Negative
Covenants.  The Company shall default in any material respect
in the due observance or performance of any covenant set forth in Section
2B.

     

    (iv) Non-Performance of Other
Obligations.  The Company shall default in the due observance
or performance of any other material covenant or agreement on the part of the
Company to be observed or performed pursuant to the terms hereof, which default
shall continue uncured for twenty (20) business days after such default has been
discovered by the Company.

     

    (v) Bankruptcy, Insolvency,
etc.  The Company shall:

     

    (a) become
insolvent or generally fail or be unable to pay, or admit in writing its
inability to pay, its debts as they become due;

     

    (b) apply
for, consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator or other custodian for the Company or any of its property, or make
a general assignment for the benefit of creditors;

     

    (c) in the
absence of such application, consent or acquiesce in, permit or suffer to exist
the appointment of a trustee, receiver, sequestrator or other custodian for the
Company or for any part of its property;

     

    (d) permit or
suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law,
or any dissolution, winding up or liquidation proceeding, in respect of the
Company and, if such case or proceeding is not commenced by the Company or
converted to a voluntary case, such case or proceeding shall be consented to or
acquiesced in by the Company or shall result in the entry of an order for relief
or shall remain for sixty (60) days undismissed; or

     

    (e) take any
corporate or other action authorizing or in furtherance of, any of the
foregoing.

     

    B. Action if
Bankruptcy.  If any Event of Default described in clauses
(v)(a) through (e) of Section 3A shall occur, the outstanding Principal Amount
of this Note shall automatically be and become immediately due and payable,
without notice or demand.

     

    C. Action if Other Event of
Default.  If any Event of Default (other than any Event of
Default described in clauses (v)(a) through (e) of Section 3A) shall occur for
any reason, whether voluntary or involuntary, and be continuing, the Payee may,
upon notice to the Company, declare all or any portion of the outstanding
Principal Amount of this Note to be due and payable, whereupon the full unpaid
Principal Amount shall be and become immediately due and payable, without
further notice, demand, or presentment.

     

    
      
         


      

      
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    D. Remedies.  In
case any Event of Default shall occur and be continuing, the Payee may proceed
to protect and enforce its rights by a proceeding seeking the specific
performance of any covenant or agreement contained in this Note or in aid of the
exercise of any power granted in this Note or may proceed to enforce the payment
of this Note or to enforce any other legal or equitable rights as the Payee
shall determine.

     

    10. Amendments, Waivers,
Severability.

     

    A. The
provisions of this Note shall supercede any prior agreements either verbally or
in writing and may not be amended, modified or changed except by an instrument
in writing signed by the party against whom enforcement is sought.

     

    B. No
failure or delay on the part of the Payee in exercising any power or right under
this Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right.  No notice to or
demand on the Company in any case shall entitle it to any notice or demand in
similar or other circumstances.  No waiver or approval by the Payee
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions.  No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.

     

    C. To the
extent that the Company makes a payment or payments to the Payee, and such
payment or payments or any part thereof are subsequently for any reason
invalidated, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not
occurred.

     

    D. After any
waiver, amendment or supplement under this section becomes effective, the
Company shall mail to the Payee a copy thereof.

     

    E. If
any provision of this Note or the application thereof to any person or
circumstances shall be held invalid or unenforceable by any court or other
governmental authority to any extent, the remainder of this Note and the
application of such provisions to other persons or circumstances shall not
affected thereby and shall remain enforceable.

     

    11. Miscellaneous

     

    A. Registered
Holder.  The Company may consider and treat the person in whose
name this Note shall be registered as the absolute owner thereof for all
purposes whatsoever (whether or not this Note shall be overdue) and the Company
shall not be affected by any notice to the contrary.   In case of
transfer of this Note by operation of law, the transferee agrees to notify the
Company of such transfer and of its address, and to submit appropriate evidence
regarding such transfer so that this Note may be registered in the name of the
transferee.  This Note is transferable only on the books of the
Company by the holder hereof, in person or by attorney, on the surrender hereof,
duly endorsed.  Communications sent to any registered owner shall be
effective as against all Holders or transferees of the Note not registered at
the time of sending the communication.

     

    B. Governing
Law.  This Note shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed within such State, without regard to principles of conflicts of
law.  The Company hereby waives any right to stay or dismiss on the
basis of forum
non conveniens any action
or proceeding brought before the courts of the State of New York sitting in the
City of New York or of United States of America for the Southern District of New
York and hereby submits to the jurisdiction of such courts.

     

    
      
         


      

      
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    C. Notices.  Unless
otherwise provided, all notices required or permitted under this Note shall be
in writing and shall be deemed effectively given (i) upon personal delivery to
the party to be notified, (ii) upon confirmed delivery by Federal Express or
other nationally recognized courier service providing next-business-day
delivery, or (iii) three business days after deposit with the United States
Postal Service, by registered or certified mail, postage prepaid and addressed
to the party to be notified, in each case at the address set forth below, or at
such other address as such party may designate by written notice to the other
party (provided that notice of change of address shall be effective upon receipt
by the party to whom such notice is addressed).

     

    If sent
to Payee, notices shall be sent to the following address:

    


    Eric
Skae

    c/o New
Leaf Brands, Inc.

    60 Dutch
Hill Road, Suite 9

    Orangeburg,
NY 10962

    


    If sent
to the Company, notices shall be sent to the following address:

    


    New Leaf
Brands, Inc.

    60 Dutch
Hill Road, Suite 9

    Orangeburg,
NY 10962

    Attention:  Chief
Financial Officer

     

    D. Parties in
Interest.  All covenants, agreements and undertakings in this
Note binding upon the Company or the Payee shall bind and inure to the benefit
of the successors and permitted assigns of the Company and the Payee,
respectively, whether so expressed or not.

     

    E. Waiver of Jury
Trial.  THE PAYEE AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS NOTE OR ANY OTHER DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE PAYEE OR THE
COMPANY.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PAYEE’S
PURCHASING THIS NOTE.

     

    [Signature page
follows]


    
      
         


      

      
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    IN
WITNESS WHEREOF, the Company has caused this Note to be signed in its name by
its duly authorized officer as of April 30th, 2010.

     

     

    
      
        	 	NEW
      LEAF BRANDS, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ David
      Tsiang	 
	 	 	Name:
      David Tsiang	 
	 	 	Title: Chief
      Financial Officer	 
	 	 	 	 


      

    

     


    
      
         


      

      
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