Attached files

file filename
10-K - 10-K - S&W Seed Coform10k.htm
EX-23.2 - CONSENT - S&W Seed Coexh23-1.htm
EX-31.2 - CFO 302 CERTIFICATE - S&W Seed Coexh31-2.htm
EX-10.34 - AMENDED AND RESTATED 2009 EQUITY INCENTIVE PLAN AS AMENDED THROUGH AMENDMENT NO. 2, FORMS OF STOCK OPTION GRANT AND AGREEMENT, RESTRICTED STOCK UNIT GRANT AND RESTRICTED STOCK AWARD - S&W Seed Coexh10-34.htm
EX-3.2 - REGISTRANT'S AMENDED AND RESTATED BYLAWS - S&W Seed Coexh3-2.htm
EX-2.6 - SECOND AMENDMENT TO THE ASSET PURCHASE AND SALE AGREEMENT - S&W Seed Coexh2-6.htm
EX-10.7 - FIRST AMENDMENT TO CONTRACT ALFALFA PRODUCTION SERVICES AGREEMENT - S&W Seed Coexh10-7.htm
EX-10.10 - FIRST AMENDMENT TO ALFALFA DISTRIBUTION AGREEMENT - S&W Seed Coexh10-10.htm
EX-32.2 - CFO 906 CERTIFICATE - S&W Seed Coexh32-2.htm
EX-21.1 - SUBSIDIARIES - S&W Seed Coexh21-1.htm
EX-31.1 - CEO 302 CERTIFICATE - S&W Seed Coexh31-1.htm
EX-32.1 - CEO 906 CERTIFICATE - S&W Seed Coexh32-1.htm
EX-23.2 - CONSENT - S&W Seed Coexh23-2.htm
EX-10.71 - CONTINUING GUARANTEE PROVIDED BY STEVIA CALIFORNIA, LLC - S&W Seed Coexh10-71.htm
EX-10.72 - FIFTH AMENDMENT TO EX-IM WORKING CAPITAL GUARANTEE CREDIT AGREEMENT - S&W Seed Coexh10-72.htm
EX-10.70 - CONTINUING GUARANTEE PROVIDED BY SEED HOLDING, LLC - S&W Seed Coexh10-70.htm
EX-10.46 - CORPORATE GUARANTEE - S&W Seed Coexh10-46.htm
EX-10.45 - BUSINESS LETTER OF ADVICE DATED APRIL 13, 2015 FROM NATIONAL AUSTRALIA BANK MODIFYING SGI FARM MANAGEMENT OVERDRAFT FACILITY - S&W Seed Coexh10-45.htm
EX-10.69 - REVOLVING LINE OF CREDIT NOTE - S&W Seed Coexh10-69.htm
EX-10.39 - COLLABORATION AGREEMENT BETWEEN THE REGISTRANT AND CALYXT, INC. - S&W Seed Coexh10-39.htm
EX-10.73 - EX-IM WORKING CAPITAL GUARANTEE REVOLVING LINE OF CREDIT NOTE - S&W Seed Coexh10-73.htm
EX-10.43 - BUSINESS LETTER OF OFFER DATED JANUARY 19, 2015 FROM NAB FOR SGI CREDIT FACILITIES - S&W Seed Coexh10-43.htm
EX-10.74 - EX-IM WORKING CAPITAL GUARANTEE CONTINUING GUARANTY PROVIDED BY SEED HOLDING, LLC - S&W Seed Coexh10-74.htm
EX-10.75 - EX-IM WORKING CAPITAL GUARANTEE CONTINUING GUARANTY PROVIDED BY STEVIA CALIFORNIA, LLC - S&W Seed Coexh10-75.htm
EX-10.44 - BUSINESS LETTER OF OFFER DATED APRIL 13, 2015 FROM NAB FOR SGI CREDIT FACILITIES - S&W Seed Coexh10-44.htm
EX-10.68 - FIFTH AMENDMENT TO CREDIT AGREEMENT - S&W Seed Coexh10-68.htm
EX-10.25 - FIRST AMENDMENT TO THE ASSIGNMENT AGREEMENT OF PLANT VARIETY CERTIFICATES, PLANT BREEDERS' RIGHTS, MAINTENANCE RIGHTS AND REGISTRATION RIGHTS - S&W Seed Coexh10-25.htm

Exhibit 2.7

THIRD AMENDMENT TO THE ASSET PURCHASE AND SALE AGREEMENT

This Third Amendment to the Asset Purchase and Sale Agreement (this "Third Amendment") is made this 23rd day of July, 2015, by and between Pioneer Hi-Bred International, Inc., an Iowa corporation ("Seller"), and S&W Seed Company, a Nevada corporation ("Buyer"). Buyer and Seller are collectively referred to herein as the "Parties" and each individually as a "Party".

WHEREAS, the Parties entered into that certain Asset Purchase and Sale Agreement dated December 19, 2014, as amended pursuant to that certain First Amendment to the Asset Purchase and Sale Agreement dated December 31, 2014 and that certain Second Amendment to the Asset Purchase and Sale Agreement dated April 23, 2015 (as amended, the "APSA");

WHEREAS, the Parties now wish to amend the APSA as provided in this Third Amendment.

NOW, THEREFORE, for and in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the Parties hereby agree as follows:

  1. As used in this Third Amendment, capitalized terms not defined herein shall have the meanings ascribed to them in the APSA.
  2. Section 5.8 of the APSA shall be amended by inserting the following new subsection (h) immediately following subsection (g) thereof:
  3. (h) No later than July 31, 2015, on not less than five (5) days' prior written notice, Buyer shall remove and transport (or cause to be removed and transported) the Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi) from Seller's or its Affiliate's facility in Wagga Wagga, New South Wales, Australia during normal business hours and in a manner that does not interfere with or negatively affect in any material respect any other activities of Seller or its Affiliates. In connection with the actions described in this Section 5.8(h), Buyer shall comply, and shall cause its Affiliates and their respective representatives and agents to comply, with all access rules and requirements of Seller or its Affiliates, including all good manufacturing practices and visitor and safety rules and requirements. The cost of such removal and transport shall be borne by Buyer. Buyer shall indemnify, defend and hold harmless the Seller Indemnified Persons for, and shall pay to each Seller Indemnified Person the amount of any Damages incurred by such Seller Indemnified Person in connection with, the removal and transportation of the Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi), including any claims by any representative or agent of Buyer or its affiliates assisting in the removal and transportation of such property. If Buyer shall fail to remove and transport the Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi) on or before July 31, 2015, Seller shall have no obligation to make


    available or deliver such Inventory Seed to Buyer, such Inventory Seed shall be deemed to be an Excluded Asset for purposes of this Agreement and clause (b) of the third berger dot on Exhibit 2.1(a)(xi) shall be deemed to be stricken from such Exhibit 2.1(a)(xi) without further action of any party. Notwithstanding anything to the contrary contained herein, (i) Buyer agrees to accept, and to cause its applicable Affiliates to accept, the Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi) "as is" and "where is", (ii) none of Seller or any of its Affiliates make any and expressly disclaim, and Buyer, for and on behalf of itself and its Affiliates, agrees and acknowledges that none of Seller or any of its Affiliates makes any and expressly disclaims reliance upon, any representation or warranty (express or implied) of any kind (including as to accuracy or completeness) with respect to the Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi), and (iii) none of Seller or any of its Affiliates shall have any Liability (including to any Buyer Indemnified Party) arising from or related to the Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi). Buyer shall bear all risk of loss with respect to all Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi).

  1. Section 9.8(a) of the APSA shall be amended by deleting the text therein in its entirety and inserting the following in lieu thereof:
  2. (a) Subject in all events to Section 5.8(h), all claims that any Buyer Indemnified Person may have with respect to the Inventory Seed, for any cause whatsoever (including for any Breach of the representations made in Section 3.14), shall be deemed waived by such Buyer Indemnified Person unless made in writing and received by Seller no later than sixty (60) days after the Closing Date; provided, however, that as to any such cause not reasonably discoverable by visual inspection within such sixty (60) day period, any claim based thereon shall be deemed to be waived by such Buyer Indemnified Person unless made in writing and received by Seller no later than fifteen (15) days after such Buyer Indemnified Person learns of such defect giving rise to such claim. Notwithstanding anything contained in this Agreement to the contrary, in no event shall any Buyer Indemnified Person be entitled to make any claim with respect to (i) the Inventory Seed, for any cause whatsoever (including for any Breach of the representations made in Section 3.14), after the date that is twelve (12) months after the Closing Date, or (ii) any of Inventory Seed described in clause (b) of the third berger dot on Exhibit 2.1(a)(xi). Any Buyer Indemnified Person's failure to provide written notice of any claim within the applicable time period(s) specified above shall be deemed an absolute and unconditional waiver by such Buyer Indemnified Person of such claim.

  3. Exhibit 2.1(a)(xi) of the APSA shall be deleted in its entirety and the form of Exhibit 2.1(a)(xi) of the APSA set forth on Attachment I to this Third Amendment shall be inserted in lieu thereof.

  1. This Third Amendment shall be effective as of the date first written above.
  2. In case of any inconsistencies between the terms and conditions contained in this Third Amendment and the terms and conditions contained in the APSA, the terms and conditions of this Third Amendment shall control.
  3. Except as set forth in this Third Amendment, (a) all provisions of the APSA shall remain unmodified and in full force and effect and (b) nothing contained in this Third Amendment shall amend, modify or otherwise affect the APSA or any Party's rights or obligations contained therein.
  4. This Third Amendment shall be governed by and interpreted in accordance with the substantive laws of the State of Delaware, without regard to its conflicts of laws principles. Any controversy or claim arising out of or relating to this Third Amendment shall be handled in accordance with Section 10.3 of the APSA.
  5. This Third Amendment (along with the APSA and the other Transaction Documents) supersedes all prior agreements between the Parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter.
  6. All of the terms and provisions of this Third Amendment shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
  7. This Third Amendment may be executed in any number of counterparts (including via facsimile or portable document format (PDF)), each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument.

[Signature Page Follows]

 

 


IN WITNESS WHEREOF, the Parties have executed and delivered this Third Amendment as of the date first above written.

 

SELLER:

 

PIONEER HI-BRED INTERNATIONAL, INC.

   
   

By:

/s/ Paul E. Schickler

Name:

Paul E. Schickler

Title:

President

 

 

BUYER:

 

S&W SEED COMPANY

   
   

By:

/s/ Matthew K. Szot

Name:

Matthew Szot

Title:

CFO and EVP

 

 

[Signature Page to Third Amendment to Asset Purchase and Sale Agreement]

 


Attachment I

Exhibit 2.1(a)(xi)
Inventory Seed

  • All unharvested alfalfa seed under grower contracts that are Transferred Contracts for the 2014 harvest season.
  • All harvested alfalfa seed under grower contracts that are Transferred Contracts for the 2014 harvest season, whether located at the Transferred Plant Sites or with any third-party conditioner.
  • The following alfalfa seed: (a) the alfalfa seed purchased on and after November 1, 2014 and prior to December 31, 2014, from the following sellers: SGI, Power Seeds, Seed-Link and Seed-Rite, and (b) non-dormant experimental seed, of the varieties set forth below, located at Seller's or its Affiliate's facility in Wagga Wagga, New South Wales, Australia (if any).

86CN762

91I05PJ1

93C01PJ1

95C06PJ1

97I01PI1

99I01PN1

91I06PJ1

93C02PS1

95C07PJ1

97I02PN1

99I02PN1

87C1CN1

91I07PJ1

93C03PN1

95C08SN1

97I03PN1

99I03PN1

87C2CN1

91I08PJ1

93C04CN1

95C09SJ1

97I03PN1

99I04PN1

87C4CN2

91I09PJ1

93C05CN1

95C10SJ1

97I04PS1

99I05PN1

91I10PJ1

93C06CN1

95C11SJ1

97I06PS1

99I06PN1

88C3SI1

91I11PJ1

93C07CS1

95C12SN1

97I07PS1

99I07PN1

88C3SN1

91I12PJ1

93F01SS1

95C13PN1

97I08PS1

99I08PN1

88C3SS1

91P05SN1

93F02PS1

95C14SS1

97I09PI1

99I09PN1

88C4SN1

91P06SN1

93F03PS1

95C17PN1

97I10PI1

99I10PN1

88C6SI1

91P07SN1

93F04PS1

95C18SN1

97I11PI1

99I12PN1

91P08SN1

93I08PS1

95C19SS1

97I12PI1

99I13PI1

89C1SI1

91P09PS1

93N04PL1

95C20PN1

97N01PL1

99I14PN1

89C1SS1

91P10PS1

93S01PJ1

95C21PS1

97N06PL1

99N01PS1

89C2SI1

91P11PS1

93U01SN1

95F51PS1

97N07PP1

99N02PS1

89C3SI1

91P12SS1

93U02SN1

95F52PI1

97N08PP1

99N03PS1

89C3SS1

91P13SJ1

93U03SS1

95F54PJ1

99N04PS1

89C4SI1

91P14SN1

93U04SN1

95U01SN1

98I01PN1

99N05SS1

89C4SN1

91U01PS1

93U05SS1

95U02SN1

98I02PI1

99N06SS1

89C4SS1

91U03SI1

95U03SN1

98I03PI1

99N07PL1

89C6SS1

91U04PI1

94C01SN1

95U04SS1

98I04PN1

99N08PL1

91U05PI1

94C02PN1

95U05SS1

98I05SI1

99N10PL1

90C1CI1

91U06SI1

94C03SN1

98I06PI1

99N11PL1

 


90C1SI1

91U07SI1

94C04SN1

96A06PS1

98I07PI1

99N12PL1

90C2PN1

91U08SI1

94C05PI1

96A07SN1

98I08PN1

99N15PL1

90C3PS1

91U09SI1

94C06PI1

96C08SJ1

98I09PS1

N99PS89

90C4SS1

94C07PI1

96C10SN1

98I10PN1

N99PS90

90C5SI1

92C01PS1

94C08PI1

96C13SN1

98I11PN1

N99PS91

90C6PN1

92C02PS1

94C09PI1

96C15SN1

98I12PN1

N99SP94

90C7PN1

92C03PI1

94C10PS1

96C18SN1

98I15PS1

N99SS92

90C8SN1

92C04PI1

94C11PS1

96C19SN1

98I17PS1

N99SS93

92C05SI1

94C12PN1

96C20PN1

98N04PP1

92C06PN1

94C13PN1

96N06PP1

98N11PS1

00I01PN1

92C07PN1

94C14SJ1

96N07PP1

98N12PS1

00I02PN1

92C08SN1

94C15SI1

96P53PS1

98N13PS1

00I03PN1

92C09PN1

94U01SS1

96P60PS1

98N14PS1

00I04PN1

92I05SN1

94U02SI1

96U04SN1

98N15PS1

00I05PN1

92I06SS1

94U03SS1

96U05SI1

98N16PS1

00I08PN1

92I07SN1

94U04SN1

98N17PS1

00I09PN1

92I08SI1

94U05SN1

00I10PN1

92I09SS1

00I11PN1

92I10SN1

00I13PN1

92I11SN1

00I14PS1

92I12SN1

00I15PN1

92I13SI1

00I16PN1

92I17PJ1

00N11SS1

92I18PJ1

00N12SS1

92I20SI1

00N13PS1

92I21SI1

00N14PS1

92I22SI1

00N15PS1

00N16PS1

Notwithstanding the foregoing, the Inventory Seed shall not include any Excluded Seed.