UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________________________
FORM 8-K
________________________________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
December 19, 2014
Date of Report (Date of earliest event reported)
S&W SEED COMPANY
(Exact Name of Company as Specified in Its Charter)
|
|
|
|
|
|
25552 South Butte Avenue
Five Points, CA 93624
(559) 884-2535
Not Applicable
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Definitive Material Agreement.
On December 19, 2014, S&W Seed Company, a Nevada corporation (the "Registrant") entered into an Asset Purchase and Sale Agreement (the "Asset Purchase Agreement"), by and between the Registrant and Pioneer Hi-Bred International, Inc., an Iowa corporation ("Pioneer"), pursuant to which the Registrant will acquire Pioneer's alfalfa production and research facility assets, as well as alfalfa germplasm, and the Registrant will assume certain liabilities related thereto.
The Asset Purchase Agreement provides for total consideration to be paid by the Registrant of up to $42 million, including $27 million in cash at closing, $10 million in the form of a promissory note (the "Promissory Note") to be issued by the Registrant, the principal amount of which may be increased by up to $5 million through potential earn-outs. The Promissory Note will have a three-year term, bear interest at 3% per annum, and be interest only until maturity, at which time the principal and any remaining interest will become due and payable.
The closing of the transactions contemplated by the Asset Purchase Agreement is conditioned on the Registrant having obtained (on terms and conditions satisfactory to it) all of the financing it needs in order to pay the cash portion of the consideration payable at closing.
The Asset Purchase Agreement also includes customary representations, warranties and covenants by the parties and customary termination provisions including that, subject to the terms of the Asset Purchase Agreement, either party may terminate the Asset Purchase Agreement if the transaction has not been consummated by December 31, 2014. Additionally, either party may terminate the Asset Purchase Agreement if the other party has materially violated or breached any representation, warranty, covenant, obligation or agreement which renders impossible the satisfaction of any of the conditions to closing set forth in the Asset Purchase Agreement.
The Registrant does not have any material relationship with Pioneer, other than with respect to the Asset Purchase Agreement.
The foregoing description of the Asset Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Asset Purchase Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit |
Description |
2.1 |
Asset Purchase and Sale Agreement, dated December 19, 2014, between S&W Seed Company and Pioneer Hi-Bred International, Inc. * Pursuant to Item 601(b)(2) of Regulation S-K, the Registrant hereby agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Asset Purchase and Sale Agreement to the Securities and Exchange Commission upon request.
|
______________
* Portions of this Exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized.
S&W SEED COMPANY |
By: /s/ Matthew K. Szot |
|
|
Matthew K. Szot | |
Executive Vice President of Finance and Administration and Chief Financial Officer |
Date: December 29, 2014
EXHIBIT INDEX
Exhibit
Description
2.1
Pursuant to Item 601(b)(2) of Regulation S-K, the Registrant hereby agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Asset Purchase and Sale
Agreement to the Securities and Exchange Commission upon request.
______________
* Portions of this Exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
EXHIBIT 2.1
** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request
CONFIDENTIAL
EXECUTION VERSION
ASSET PURCHASE AND SALE AGREEMENT
By and Between
PIONEER HI-BRED INTERNATIONAL, INC.
and
S&W SEED COMPANY
Dated December 19, 2014
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CONTENTS
ASSET PURCHASE AND SALE AGREEMENT
This Asset Purchase and Sale Agreement is made this 19
TH
day of December, 2014, by and between Pioneer Hi-Bred International, Inc., an
Iowa corporation (
"Seller"
), and S&W Seed Company, a Nevada corporation (
"Buyer"
).
RECITALS
WHEREAS,
Buyer and/or its Affiliates desire to purchase from Seller and/or its Affiliates, the Purchased Assets, for the consideration and on the
terms set forth in this Agreement; and
WHEREAS,
Seller and/or its Affiliates desire to sell to Buyer and/or its Affiliates, the Purchased Assets, for the consideration and on the terms set
forth in this Agreement.
NOW THEREFORE,
for and in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be
legally bound hereby, Buyer and Seller hereby agree as follows:
ARTICLE 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings specified or referred to in this
Article 1
:
"Active Employees"
- means those Employees identified on
Exhibit 5.9
who are not Inactive Employees.
"Actual Inventory Seed Reimbursement"
- is defined in
Section 2.2(d)
.
"Affiliate"
- means, with respect to any Person, (a) any other Person directly or indirectly controlling, controlled by or under common
control with such first Person, (b) any officer, director, general partner, member or trustee of such Person or (c) any Person who is an officer, director, general partner, member or
trustee of any Person described in
clause (a)
or
(b)
of this sentence. For purposes of this definition, the terms "control," "controlling,"
"controlled by" or "under common control with" shall mean the possession, direct or indirect, of the power to control the management of a Person, whether
through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, an entity shall not be deemed an Affiliate of a Person if the Person does not control
such entity, irrespective of whether the Person owns fifty percent (50%) or more of such entity's shares of capital stock, limited liability company interests or other equity
interests.
"Agreement"
- means this Asset Purchase and Sale Agreement, including all
Exhibits
,
Seller's Disclosure
Schedules
,
Buyer's Disclosure Schedules
and
Schedules
hereto, as amended, modified or supplemented from time to time in accordance with its terms.
"ALTA"
- is defined in
Section 5.16(a)
.
"Appraiser"
- is defined in
Section 2.2(b)
.
"APS Purchase Price"
- is defined in
Section 2.2(b)
.
"APS Title Agency"
- is defined in
Section 5.16(a)(i)
.
"APS Title Commitment"
- is defined in
Section 5.16(a)(i)
.
"APS Title Company"
- is defined in
Section 5.16(a)(i)
.
"Arlington Baseline Assessment"
- is defined in
Section 5.17
.
"Arlington Plant Site"
- is defined in
Section 2.1(a)(i)
.
"Assignment and Assumption Agreement"
- means the Assignment and Assumption Agreement in the form attached hereto as
Exhibit 1(A)
to be entered into at the Closing by Seller and Buyer.
"Assumed Liabilities"
- is defined in
Section 2.1(c)
.
"Authorizations"
- is defined in
Section 5.10
.
"Average Earn-Out Units"
- is defined in
Section 2.4(a)
.
"Baseline Assessments"
- is defined in
Section 5.17(a)
.
"Baseline Environmental Condition Reports"
- is defined in
Section 5.17(b)
.
"Basket"
- is defined in
Section 9.4(a)
.
"Breach"
- a "Breach" of a representation, warranty, covenant, obligation, or other provision of this Agreement shall be
deemed to have occurred if there is or has been a breach of, inaccuracy in, or failure to perform or comply with, such representation, warranty, covenant, obligation or other
provision of this Agreement.
"
Business Day
"
- means any day other than (a) a Saturday or a Sunday or (b) a day on which commercial banks
located in the State of Delaware are authorized or required by Legal Requirements to be closed for business.
"Buyer"
- is defined in the preamble.
"Buyer Benefit Plans"
- is defined in
Section 5.9(c)
.
"Buyer Indemnified Persons"
- is defined in
Section 9.1
.
2
"Buyer's Disclosure Schedules"
- means the disclosure schedules of Buyer attached hereto and made a part hereof.
"Change of Control"
- is defined in
Section 2.4(c)
.
"Change of Control Average Earn-Out Units"
- is defined in
Section 2.4(c)
.
"Change of Control Statement"
- is defined in
Section 2.4(c)
.
"Clean Report"
- is defined in
Section 5.17(c)
.
"Closing"
- is defined in
Section 2.3
.
"Closing Date"
- is defined in
Section 2.3
.
"Closing Reimbursement Statement"
- is defined in
Section 2.2(d)
.
"Code"
- means the Internal Revenue Code of 1986, as amended from time to time.
"Confidential Information"
- is defined in
Section 5.3(a)
.
"Confidentiality Agreement"
- means that certain Confidentiality Agreement dated as of May 6, 2014, between Buyer and Seller
(as thereafter amended from time to time).
"Consent"
- means any approval, consent, ratification, waiver or other authorization, including the expiration of any required
waiting period pursuant to any merger control or competition law.
"Contemplated Transactions"
- means all of the transactions contemplated by this Agreement and the other Transaction
Documents.
"CPR"
- is defined in
Section 10.3(b)
.
"Damages"
- is defined in
Section 9.1
.
"Data Transfer Agreement"
- means the Data Transfer Agreement in the form attached hereto as
Exhibit 1(B)
to be
entered into by Seller and Buyer at the Closing.
"Deed of Trust (Nampa)"
- means the Deed of Trust in the form attached hereto as
Exhibit 1(C)
to be entered into by
Seller and Buyer at the Closing.
"Dispute Notice"
- is defined in
Section 2.4(b)
.
"Distribution Agreement"
- means the Distribution Agreement in the form attached hereto as
Exhibit 1(D)
to be entered into by
Seller and Buyer at the Closing.
"Earn-Out Payment"
- is defined in
Section 2.4(a)
.
3
"Earn-Out Statement"
- is defined in
Section 2.4(a)
.
"Employees"
- means those employees of Seller or its Affiliates expressly identified and set forth on
Exhibit 5.9
, as such
Exhibit
may be updated from time to time (a) by Seller prior to the Closing, to reflect those employees who have terminated their employment with Seller or have been
terminated for cause, or (b) otherwise, by agreement of Seller and Buyer.
"Encumbrance"
- means any
lien, pledge, security interest,
right of first refusal or other like
restriction.
"Environment"
- means any indoor or outdoor environmental media (including soils (surface and subsurface), geologic strata and
formations, navigable waters, streams, rivers, bays, ponds, impoundments, estuaries, ocean waters, surface waters, occasional or perched water, sediments, sludges, subsurface
strata, groundwater, drinking water supply, land surfaces, flora and fauna, marshes and other wetlands, flood plains, natural resources and ambient air) and any living organism or
ecosystem supported by such media.
"Environmental Conditions"
- means collectively, the presence of Hazardous Materials in the Environment or the Release of
Hazardous Materials.
"Environmental Consultant"
- means URS Corporation.
"Environmental Law"
- means all Legal Requirements, whether Federal, state, municipal statutory or common law relating to
pollution or protection of human health and the Environment, including those relating to Releases or threatened Releases of Hazardous Materials or otherwise relating to the
manufacture, processing, distribution, handling, use, recycle, generation, management, treatment, storage, transportation or disposal of Hazardous Materials. "Environmental
Law" includes, but is not limited to, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.), the Solid Waste Disposal Act
and the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.), the Clean Air Act (42 U.S.C. §§
7401 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Oil Pollution Act (33 U.S.C. §§ 2701 et seq.), the Emergency Planning and Community Right-to-Know Act
(42 U.S.C. §§ 11001 et seq.), the Federal Insecticide, Fungicide, Rodenticide Act, the Safe Drinking Water Act and the Occupational Safety and Health Act (15 U.S.C. §§
2601 et seq.) and analogous state counter parts.
"Estimated Inventory Seed Reimbursement"
- is defined in
Section 2.2(c)
.
"Estimated Reimbursement Statement"
- is defined in
Section 2.2(c)
.
"Excluded Assets"
- is defined in
Section 2.1(b)
.
"Excluded Equipment"
- is defined in
Section 2.1(b)(ii)
.
"Excluded Liabilities"
- is defined in
Section 2.1(d)
.
4
"Excluded Seed"
- is defined in
Section 2.1(b)(vii)
.
"[**]
1
Consent"
- is defined in
Section 5.19(a)
.
"Governmental Body"
- means any federal, state, local, municipal, foreign, tribal or other governmental body entitled to exercise any
administrative, executive, judicial, legislative, police, regulatory or taxing authority.
"Ground Lease"
- means the Lease Agreement (Alfalfa Facilities Only-Connell, Washington) in the form attached hereto as
Exhibit 1(E)
to be entered into by Seller and Buyer on the Closing Date.
"Guaranty"
- means the Guaranty Agreement in the form attached hereto as
Exhibit 1(F)
.
"Hazardous Materials"
- means any: (a) petroleum and every fraction thereof, petrochemical or petroleum products, oil or coal
ash, pesticides, insecticides, fungicides, rodenticides, radioactive materials, radon gas, asbestos or asbestos-containing material, polychlorinated biphenyls, lead-based paint, urea
formaldehyde foam insulation flammable or explosive materials, mold, biohazardous materials or waste, natural or synthetic gas, or silica; (b) chemicals, materials, substances,
wastes, compounds, mixtures or by-products, whether solid, liquid or gaseous, that are identified, listed, defined, designated, restricted, prohibited or otherwise regulated as or
included in the definition of "hazardous substances," "hazardous materials," "hazardous constituents," "hazardous wastes,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "regulated substances," "solid waste,"
"sludge," "toxic pollutants," "toxic air pollutants," "restricted hazardous materials," "extremely hazardous substances,"
"hazardous air pollutants," "dangerous or toxic substances," "chemical wastes," "special wastes," "pollutants,"
"contaminants" or words of similar meaning and regulatory effect under any Environmental Law; and (c) other chemicals, materials, substances, wastes, compounds,
mixtures or by-products (in each case, whether solid, liquid or gaseous), the exposure to, or treatment, storage, transportation, disposal or Release, of which is prohibited, limited or
regulated by any Environmental Law.
"Inactive Employee"
- means any Employee identified on
Exhibit 5.9
who is on a temporary leave of absence, including
family medical leave, military leave, short-term disability, personal leave or sick leave as of the relevant date specified herein.
"Indemnified Person"
- means a Buyer Indemnified Person or a Seller Indemnified Person, as the case may be.
"Indemnifying Person"
- is defined in
Section 9.5(a)
.
"Inventory Seed"
- is defined in
Section 2.1(a)(xi)
.
_______________
5
"IT Transition Services Agreement"
- means the Information Technology Transition Services Agreement in the form attached
hereto as
Exhibit 1(G)
to be entered into by Seller and Buyer at the Closing.
"Know-How"
- means unpatented inventions, trade secrets, technical information or formulae.
"Know-How Transfer Agreement"
- means the Know-How Transfer Agreement in the form attached hereto as
Exhibit 1(H)
to be entered into by Seller and Buyer at the Closing.
"Knowledge"
- an individual shall be deemed to have "Knowledge" of a particular fact or other matter only if such
individual is actually aware of such fact or other matter.
"Legal Requirement"
- means any applicable law, statute, treaty, directive, rule, code, ordinance, regulation, Order, enforcement action,
decree or enforceable judicial or administrative interpretation thereof of any applicable Governmental Body.
"Liabilities"
- means any liabilities, obligations, warranty, expenses, claims, Taxes or assessments, losses, fines, penalties,
surcharges or damages (including, without limitation, diminution of value) of or by any Person.
"License"
- means the License in the form attached hereto as
Exhibit 1(I)
to be entered into by Seller and Buyer on the
Closing Date.
"Material Adverse Effect"
- means any change, effect, event, result, occurrence, condition or fact (for purposes of this definition,
each, an "event") that is, or could reasonably be expected to be, materially adverse to the Purchased Assets, taken as a whole, except any event (a) resulting from
general economic, regulatory or political conditions or from terrorist acts, declared or undeclared war or other hostilities (so long as the Purchased Assets are not affected thereby in
a materially disproportionate manner), (b) that affects the general industry in which the Purchased Assets are owned or used (so long as the Purchased Assets are not affected
thereby in a materially disproportionate manner) or (c) related to the announcement of the Contemplated Transactions. Notwithstanding anything contained herein to the contrary,
no action taken by Seller or Buyer (or any of their respective Affiliates) expressly required or contemplated by this Agreement or the other Transaction Documents shall be deemed
to have a Material Adverse Effect.
"[**]
2
Consent"
- is defined in
Section 5.19(a)
.
"Mortgage (Arlington)"
- means the Mortgage in the form attached hereto as
Exhibit 1(J)
to be entered into by Seller and
Buyer at the Closing.
"Nampa Baseline Assessment"
- is defined in
Section 5.17
.
"Nampa Plant Site"
- is defined in
Section 2.1(a)(ii)
.
_______________
6
"Notice of Omitted Intellectual Property"
- is defined in
Section 5.18
.
"NPS Purchase Price"
- is defined in
Section 2.2(b)
.
"NPS Title Agency"
- is defined in
Section 5.16(a)(ii)
.
"NPS Title Commitment"
- is defined in
Section 5.16(a)(ii)
.
"NPS Title Company"
- is defined in
Section 5.16(a)(ii)
.
"Omitted Intellectual Property"
- is defined in
Section 5.18
.
"
Order
"
- means any award, decision, injunction, judgment, order, ruling, decree, subpoena or verdict entered, issued, made or
rendered by any court, administrative agency or other Governmental Body.
"Ordinary Course of Business"
- an action
taken by a Person shall be deemed to have been taken in the "Ordinary
Course of Business" if such action is consistent in all material respects with the past practices of such Person and is taken in the ordinary course of the normal day-to-day
operations of such Person.
"Outside Date"
- is defined in
Section 8.1(d)
.
"Patent Assignment"
- means the Patent Assignment Agreement in the form attached hereto as
Exhibit 1(K)
to be
entered into by Seller and Buyer at the Closing.
"Patent License"
- means the Patent License Agreement in the form attached hereto as
Exhibit 1(L)
to be entered into
by Seller and Buyer on the Closing Date.
"Permit"
- means a permit, authorization, license, certificate, concession, Consent, clearance, confirmation, exemption,
franchise, certification, designation, variance, qualification, accreditation or registration issued, granted, given or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.
"Permitted Encumbrance"
-
means (a) any Encumbrance for Taxes accrued but not yet due or for Taxes
the validity of which are being contested in good faith by appropriate proceedings, (b) any statutory carriers', warehousemen's, workmen's or mechanics' lien or other like
Encumbrance that is not yet delinquent or is being contested in good faith by appropriate Proceedings, (c) any Encumbrance for routine maintenance fees and payments on
any Transferred Patents that are not yet delinquent, including, without limitation, fees due to Governmental Bodies for maintenance of such patents, and/or (d) with respect to a
Transferred Plant Site, in addition to those Encumbrances described in
clauses (a)
,
(b)
, and
(c)
(i) any encroachment, Encumbrance, variation or
adverse circumstance affecting title to such Transferred Plant Site which would not reasonably be expected to materially interfere with the continued operation of such Transferred
Plant Site as has been operated by Seller and its Affiliates in the Ordinary Course of Business
,
(ii) all matters of record and any
state of facts that an accurate title search, survey or inspection would disclose
affecting the Transferred Plant Sites,
7
including, without limitation, any and all matters and states of fact reflected on the Surveys, (iii) any environmental covenants
, (iv) any Encumbrance or other matter described on
Exhibit 1(M)
, and (v) any Encumbrance or other matter described in
Schedule 3.2 of Seller's Disclosure Schedules
.
"Person"
- means any individual
,
corporation, general or limited partnership, limited liability company, joint venture, estate,
trust, association, organization, labor union or other entity or Governmental Body.
"Post-Closing Environmental Conditions"
- means, with respect to each of the Transferred Plant Sites, any and all Environmental
Conditions at, involving, relating to, arising out of or emanating from the Transferred Plant Site that are not Pre-Closing Environmental Conditions;
provided
,
however
, that in the event that the Environmental Consultant shall deliver a Clean Report with respect to a Transferred Plant Site, Post-Closing Environmental Conditions
shall, with respect to such Transferred Plant Site, mean and any all Environmental Conditions at, involving, relating to, arising out of or emanating from, such Transferred Plant Site.
"Pre-Closing Environmental Conditions"
- means, with respect to each of the Transferred Plant Sites, any and all Environmental
Conditions at, involving, relating to, arising out of or emanating from the Transferred Plant Site that are identified or disclosed, and solely to the extent identified and disclosed, in the
applicable Baseline Environmental Condition Report (in type, scope, quantity and level), as adjusted to reflect any Remediation performed by or on behalf of Seller or its Affiliates at
such Transferred Plant Site.
"Premises"
- shall have the meaning ascribed to such term in the Ground Lease.
"Proceeding"
- means any action,
arbitration, hearing, litigation or suit (whether civil, criminal or administrative) commenced,
brought, conducted or heard by or before any Governmental Body or arbitral or other administrative body (including any action in respect of the payment or non-payment of Taxes).
"Production Agreement"
- means the Contract Alfalfa Production Agreement in the form attached hereto as
Exhibit 1(N)
to be entered into by Seller and Buyer on the Closing Date.
"Products"
- means, collectively, the products listed on
Exhibit 1(O)
.
"Property Taxes"
- is defined in
Section 5.5(b)
.
"Promissory Note"
- means the Promissory Note in the aggregate principal amount of up to Fifteen Million United States Dollars
($15,000,000), in the form attached hereto as
Exhibit 1(P)
, to be entered into by Buyer, in favor and for the benefit of Seller, at the Closing.
"Protest Notice"
- is defined in
Section 2.2(d)
.
"Purchase Price"
- means Thirty-Seven Million United States Dollars ($37,000,000).
8
"Purchased Assets"
- is defined in
Section 2.1(a)
.
"PVP Assignment"
-
means the Assignment Agreement of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights
and Registration Rights in the form attached hereto as
Exhibit 1(Q)
to be entered into at the Closing by Seller, Buyer and Pioneer Overseas Corporation, an Iowa
corporation.
"Recognized Environmental Condition"
- means the presence or likely presence of any Hazardous Materials at, involving or
related to the Transferred Plant Site: (i) due to a Release; (ii) under conditions indicative of a Release; or (iii) under conditions that pose a material threat of a future Release. For
the avoidance of doubt, de minimis conditions (as defined by ASTM International) shall not be deemed Recognized Environmental Conditions.
"Release"
- means the spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping,
releasing, depositing or disposing into the Environment or into or out of any property, including the movement in, or through, the Environment or abandoned or discarded barrels,
containers or other closed receptacles.
"Remediation"
- means, with respect to each of the Transferred Plant Sites, an action of any kind to address, correct or respond
to a violation (or an alleged violation) of Environmental Law or any Environmental Condition, including the following activities: (a) remedial actions; (b) monitoring, investigation,
assessment, treatment, cleanup, containment, removal, mitigation, response or restoration work; (c) responding to any notice, claim, Proceeding, Order, or investigation by any
Person alleging potential Damages for property damage (including claims for interference with use and diminution in value) or death or injury to Persons; (d) negotiating with any
Governmental Body or obtaining any Consent of a Governmental Body necessary to address, correct or respond to, or to comply with Environmental Law; (e) preparing and
implementing any plans or studies for any such activity; (f) actions necessary to obtain a written notice from a Governmental Body that no material additional work is required to
complete remedial actions required by such Governmental Body; (g) the use, implementation, application, installation, operation or maintenance or removal actions on the
Transferred Plant Site or an off-site location of remedial technologies applied to the surface or subsurface soils, excavation and treatment or disposal of soils at an off-site location,
systems for investigation, treatment or monitoring of surface water or groundwater, or engineering or institutional controls; and (h) any other activities reasonably determined by the
Person performing the Remediation to be necessary or appropriate or required under Environmental Law to address, correct or respond to any Environmental Condition.
"Research Agreement"
- means the Research Agreement in the substantially the form attached hereto as
Exhibit 1(R)
, but with
such changes as shall be necessary to conform such Research Agreement to the terms and conditions provided by [**] and [**]
3
in the Consent referenced in
Exhibit 6.2
, to
be entered into by Seller and Buyer on the Closing Date.
"Review Period"
- is defined in
Section 2.4(b)
.
_______________
9
"Revised Reimbursement Statement"
- is defined in
Section 2.2(d)
.
"Second APSA"
- means the Asset Purchase and Sale Agreement in the form attached hereto as
Exhibit 1(S)
, as the same may
be updated or revised in accordance with
Section 5.19
.
"Second APSA Agreements"
- is defined in
Section 5.19(a)
.
"Second APSA Closing Date"
- is defined in
Section 5.19(c)
.
"Second APSA Consents"
- is defined in
Section 5.19(a)
.
"Second Closing Assets"
- means those assets described on
Exhibit 5.19
, as such Exhibit may be supplemented,
amended or updated pursuant to
Section 5.19(c)
.
"Security Agreement"
- means the Security Agreement in the form attached hereto as
Exhibit 1(T)
to be entered into by Seller
and Buyer on the Closing Date.
"Seller"
- is defined in the preamble.
"Seller Indemnified Persons"
- is defined in
Section 9.2
.
"Seller's Disclosure Schedules"
- means the disclosure schedules of Seller attached hereto and made a part hereof.
"Seller's Knowledge"
- means the Knowledge of the following individuals: (a) [**];
(b) [**]; (c) [**]; (d) [**];
(e) solely with respect to employee-related matters (including
Section 3.11
), [**]; and (f) solely with respect to
tax-related matters (including
Section 3.12
), [**]
4
.
"Survey"
and
"Surveys"
-
are defined in
Section 5.16(b)
.
"Taxes"
-
means any net income, alternative or add-on minimum tax, gross income, gross receipts, sales, uses, ad
valorem, franchise, capital, paid-up capital, profits, greenmail, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or
windfall profit tax, custom, duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or
additional amount imposed by any Governmental Body responsible for the imposition of any such tax.
"Third-Party Claim"
- is defined in
Section 9.5(a)
.
"Threatened"
- an action or Proceeding shall be deemed to have been "Threatened" if any demand or statement has
been made in writing, or any written notice has been given and received.
_______________
10
"Title Agencies"
- is defined in
Section 5.16(a)
.
"Title Company"
and
"Title Companies"
- are defined in
Section 5.16(a)
.
"Transaction Documents"
- means this Agreement, the Assignment and Assumption Agreement, the Data Transfer Agreement, the Deed
of Trust (Nampa), the Distribution Agreement, the Ground Lease, the Know-How Transfer Agreement, the IT Transition Services Agreement, the License, Mortgage (Arlington), the
Patent Assignment, the Patent License, the Production Agreement, the Promissory Note, the PVP Assignment, the Research Agreement, the Security Agreement, the Warranty
Deed (Arlington), the Warranty Deed (Nampa), and any other documents or agreements executed and/or delivered in connection with the Contemplated Transactions.
"Transferred Contracts"
- is defined in
Section 2.1(a)(v)
.
"Transferred Employee"
- is defined in
Section 5.9(a)
.
"Transferred Equipment"
- is defined in
Section 2.1(a)(iii)
.
"Transferred Germplasm"
- is defined in
Section 2.1(a)(viii)
.
"Transferred Intellectual Property"
- means, collectively, the Transferred Germplasm, the Transferred Know-How, the Transferred
Patents and Transferred PVPs.
"Transferred Know-How"
- is defined in
Section 2.1(a)(vi)
.
"Transferred PVPs"
- is defined in
Section 2.1(a)(xiv)
.
"Transferred Patents"
- is defined in
Section 2.1(a)(vii)
.
"Transferred Plant Sites"
- means, collectively, the Arlington Plant Site and the Nampa Plant Site.
"Transferred Records"
- is defined in
Section 2.1(a)(iv)
.
"Warranty Deed (Arlington)"
- means the Warranty Deed in the form attached hereto as
Exhibit 1(U)
to be entered into
by Seller and Buyer at the Closing.
"Warranty Deed (Nampa)"
- means the Warranty Deed in the form attached hereto as
Exhibit 1(V)
to be entered into by
Seller and Buyer at the Closing.
"Water Rights"
- is defined in
Section 3.15
.
11
ARTICLE 2. SALE OF PURCHASED ASSETS; LIABILITIES; PURCHASE PRICE; CLOSING
2.1 PURCHASED ASSETS; LIABILITIES
ARTICLE 1
DEFINITIONS
1
ARTICLE 2
SALE OF PURCHASED ASSETS; LIABILITIES; PURCHASE PRICE; CLOSING
12
2.1
PURCHASED ASSETS; LIABILITIES
12
2.2
PURCHASE PRICE
15
2.3
CLOSING
17
2.4
EARN-OUT PAYMENTS
17
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
19
3.1
ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS
19
3.2
TITLE
20
3.3
LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS
21
3.4
BROKERS OR FINDERS
21
3.5
ABSENCE OF CHANGE
21
3.6
TRANSFERRED PLANT SITES
22
3.7
TRANSFERRED EQUIPMENT
23
3.8
TRANSFERRED CONTRACTS
23
3.9
TRANSFERRED INTELLECTUAL PROPERTY
23
3.1
RESERVED
24
3.11
EMPLOYEE MATTERS; EMPLOYEE BENEFITS
24
3.12
TAXES
25
3.13
ENVIRONMENTAL LAWS
25
3.14
INVENTORY
26
3.15
WATER RIGHTS
27
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
27
4.1
ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS
27
4.2
LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS
28
4.3
BROKERS OR FINDERS
28
4.4
PAYMENTS OF BUYER
28
4.5
INSPECTIONS; NO OTHER REPRESENTATIONS
29
ARTICLE 5
COVENANTS
30
5.1
EXECUTION AND DELIVERY OF OTHER TRANSACTION
DOCUMENTS
30
5.2
ACCESS AND INVESTIGATION
30
5.3
CONFIDENTIALITY
31
5.4
PUBLICITY
33
5.5
TRANSFER TAXES; PRO-RATIONS
33
5.6
CERTAIN DOCUMENTS
34
5.7
NON-ASSIGNABLE ASSETS
34
(CONTINUED)
5.8
DELIVERY OF CERTAIN PURCHASED ASSETS; CERTAIN EXCLUDED ASSETS;
35
MAINTENANCE OF TRANSFERRED PATENTS; INVENTORY SEED
5.9
EMPLOYEE MATTERS
37
5.1
PERMITS
39
5.11
REQUIRED APPROVALS; CONSENTS
39
5.12
CLOSING EFFORTS; NOTICES
40
5.13
OPERATION OF THE PURCHASED ASSETS
40
5.14
NON-SOLICITATION
41
5.15
AUDIT
42
5.16
TRANSFERRED PLANT SITES
42
5.17
ENVIRONMENTAL MATTERS
44
5.18
OMITTED INTELLECTUAL PROPERTY
46
5.19
SECOND APSA
47
5.2
GROWER CONTRACTS
49
5.21
BUYER FINANCING
50
ARTICLE 6
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
50
6.1
ACCURACY OF REPRESENTATIONS; PERFORMANCE OF OBLIGATIONS
50
6.2
CONSENTS
50
6.3
BUYER'S DELIVERIES
51
6.4
NO PROCEEDINGS; NO LEGAL REQUIREMENT
51
6.5
NO PROHIBITION
51
6.6
LENDER'S POLICY; OTHER REAL ESTATE MATTERS
52
6.7
FINANCING
52
6.8
INTERCREDITOR AGREEMENT
52
ARTICLE 7
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
52
7.1
ACCURACY OF REPRESENTATIONS; PERFORMANCE OF OBLIGATIONS
52
7.2
CONSENTS
53
7.3
SELLER'S DELIVERIES
53
7.4
NO PROCEEDINGS; NO LEGAL REQUIREMENT
54
7.5
NO PROHIBITION
54
7.6
INVENTORY AND GROWER COMMITMENTS
54
7.7
FINANCING
54
7.8
INTERCREDITOR AGREEMENT
54
ARTICLE 8
TERMINATION
54
8.1
TERMINATION EVENTS
54
8.2
EFFECT OF TERMINATION
55
(CONTINUED)
ARTICLE 9
INDEMNIFICATION; REMEDIES
55
9.1
INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER
55
9.2
INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER
56
9.3
SURVIVAL; TIME LIMITATIONS
56
9.4
LIMITATIONS ON DAMAGES
57
9.5
PROCEDURE FOR INDEMNIFICATION-THIRD-PARTY CLAIMS
58
9.6
PROCEDURE FOR INDEMNIFICATION-OTHER CLAIMS
59
9.7
NET RECOVERY; MITIGATION; TREATMENT; ETC
59
9.8
LIMITATIONS OF LIABILITY AND INDEMNIFICATION RELATING TO THE INVENTORY SEED
60
9.9
LIMITATIONS OF LIABILITY AND INDEMNIFICATION RELATING TO ENVIRONMENTAL CONDITIONS
60
ARTICLE 10
GENERAL PROVISIONS
63
10.1
EXPENSES
63
10.2
NOTICES
63
10.3
DISPUTE RESOLUTION; GOVERNING LAW; JURISDICTION
64
10.4
EQUITABLE RELIEF
65
10.5
NO IMPLIED WAIVERS; NO JURY TRIAL
66
10.6
ENTIRE AGREEMENT AND MODIFICATION
66
10.7
ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
66
10.8
SEVERABILITY
67
10.9
SECTION HEADINGS; CONSTRUCTION
67
10.1
TIME OF THE ESSENCE
67
10.11
FURTHER ASSURANCES
67
10.12
PERFORMANCE BY AFFILIATES; BULK SALES LAWS
68
10.13
COUNTERPARTS
68
1
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
2
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
3
The bracketed information in this section has been omitted and filed separately with the SEC pursuant to a confidential treatment request.
4
The bracketed information in this section has been omitted and filed separately with the SEC pursuant to a confidential treatment request.
12
13
14
2.2 PURCHASE PRICE
15
16
Payments of such amounts shall be made in immediately available funds by wire transfer to such bank account(s) as the party receiving the payment shall specify to the paying party.
2.3 CLOSING
The closing of the purchase and sale of the Purchased Assets (the "Closing" ) shall take place at the offices of Seller's attorney located in Wilmington, Delaware, USA, or at such other place or in such other manner as shall be mutually agreed upon by the parties, on (a) the last Business Day of the month in which all of the conditions to the Closing in Articles 6 and 7 are satisfied or waived by the party entitled to waive such condition(s), or (b) at such other date and time as shall be mutually agreed upon by the parties in writing (the date on which the Closing occurs, the "Closing Date" ). The Closing shall be effective as of 11:59:59 pm Eastern Time on the Closing Date. Subject to the provisions of Article 8 , failure to consummate the purchase and sale provided for in this Agreement on the date and time and at the place determined pursuant to this Section 2.3 shall not result in the termination of this Agreement and shall not relieve any party of any obligation under this Agreement.
2.4 EARN-OUT PAYMENTS
(i) the sum of:
(A) the aggregate number of units of commercial alfalfa seed products that were derived from the Transferred Germplasm and sold by or on behalf of Buyer or its Affiliates between January 1, 2015 and September 30, 2017 (exclusive of any such sales made to Seller or its Affiliates pursuant to the Distribution Agreement); plus
(B) the aggregate of (I) the greater of (a) 178,458 or (b) the number of units of commercial alfalfa seed products set forth in Schedule 2.3.2 of the Distribution Agreement for the 2015 Sales Year, (II) the number of units of commercial alfalfa seed products
17
set forth in Schedule 2.3.2 of the Distribution Agreement for the 2016 Sales Year, (III) the number of units of commercial alfalfa seed products set forth in the Initial Demand Plan, or, if applicable, the Revised Demand Plan, for the 2017 Sales Year, and (IV) the number of units of Pioneer Products purchased pursuant to Section 2.3.4 of the Distribution Agreement between January 1, 2015 and September 30, 2017 (as the terms Sales Year, Initial Demand Plan, Revised Demand Plan and Pioneer Products are defined in the Distribution Agreement); plus
(C) the aggregate of (I) the 2015 Contracted Amount (as such term is defined in the Production Agreement), (II) the greater of (a) the number of units of commercial alfalfa seed products purchased by or on behalf of Seller for calendar year 2016 pursuant to the terms of the Production Agreement or (b) the product of the number of acres specified in Exhibit F to the Production Agreement multiplied by fourteen (14), and (III) the greater of (a) the number of units of commercial alfalfa seed products purchased by or on behalf of Seller for calendar year 2017 pursuant to the terms of the Production Agreement or (b) the product of the number of acres specified in the Initial Demand Plan, or, if applicable, the Revised Demand Plan (as such terms are defined in the Production Agreement) multiplied by fourteen (14);
divided by
(ii) three (3).
For the avoidance of doubt, the Earn-Out Statement shall specify the number of units of commercial alfalfa seed products described in each of Section 2.4(a)(i)(A)-(C) above. On October 31, 2017, Buyer shall pay to Seller an aggregate amount (the "Earn-Out Payment" ) equal to (i) $2,500,000, if the Average Earn-Out Units is equal to or greater than 185,000 and less than 225,000, (ii) $3,750,000, if the Average Earn-Out Units is equal to or greater than 225,000 and less than 250,000, or (iii) $5,000,000, if the Average Earn-Out Units is equal to or greater than 250,000, which Earn-Out Payment shall be advanced by Seller pursuant to the terms of the Promissory Note and payable by Buyer in accordance with the terms thereof.
18
immediately available funds to the account specified by the party entitled to receive such payment.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in Seller's Disclosure Schedules or as set forth in this Article 3 , Seller hereby represents and warrants to Buyer (a) as of the date of this Agreement, and (b) as of the Closing Date, as follows:
3.1 ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS
19
accordance with its terms and conditions, subject to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of creditors' rights generally, general equitable principles, and court discretion in granting equitable remedies.
3.2 TITLE
Except as set forth in Schedule 3.2 of Seller's Disclosure Schedules :
20
3.3 LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS
3.4 BROKERS OR FINDERS
Except as set forth in Schedule 3.4 of Seller's Disclosure Schedules , none of Seller or any of its Affiliates has incurred any Liability for brokerage or finders' fees or agents' commissions or other similar payments in connection with this Agreement or the Contemplated Transactions.
3.5 ABSENCE OF CHANGE
Except as set forth in Schedule 3.5 of Seller's Disclosure Schedules , since April 30, 2014, (i) the Purchased Assets have been operated in the Ordinary Course of Business and (ii) there has not been:
21
3.6 TRANSFERRED PLANT SITES
22
3.7 TRANSFERRED EQUIPMENT
Except as set forth in Schedule 3.7 of Seller's Disclosure Schedules or as indicated on Exhibit 2.1(a)(iii) , (a) as of the date of this Agreement, each material item of Transferred Equipment is in good repair and good operating condition suitable for its current use, ordinary wear and tear excepted and (b) all Transferred Equipment used in connection with the operation of the Purchased Assets is in the possession of Seller or its Affiliates.
3.8 TRANSFERRED CONTRACTS
Except as set forth in Schedule 3.8 of Seller's Disclosure Schedules or as indicated on Exhibit 2.1(a)(v) , each of the Transferred Contracts is valid and binding upon and enforceable against the parties thereto and in full force and effect, without the right of any other party to terminate such Transferred Contract as a result of the Contemplated Transactions without penalty, acceleration of maturity of any rights or obligations or other adverse consequence therewith. Seller is not, and to Seller's Knowledge, no counter-party to any Transferred Contract is, in material default under any Transferred Contract, nor to Seller' Knowledge, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. At Closing, Seller shall deliver to Buyer complete copies of all Transferred Contracts.
3.9 TRANSFERRED INTELLECTUAL PROPERTY
Except as set forth in Schedule 3.9 of Seller's Disclosure Schedules :
23
None of the Transferred Patents have been adjudged invalid or unenforceable by a court of competent jurisdiction or applicable government agency, in whole or in part, and there is no pending or, to Seller's Knowledge, Threatened action, suit, proceeding or claim by others challenging the validity or scope of any Transferred Patents.
3.10 RESERVED
3.11 EMPLOYEE MATTERS; EMPLOYEE BENEFITS
24
3.12 TAXES
Except as set forth in Schedule 3.12 of Seller's Disclosure Schedules , Seller and its Affiliates have timely paid when due all Taxes which have been required to be paid on or prior to the date of this Agreement with respect to Seller's or its Affiliates' sale of the Purchased Assets, the non-payment of which would result in an Encumbrance (other than any Permitted Encumbrance) thereon or would otherwise adversely the Purchased Assets or would result in Buyer becoming liable or responsible therefor.
3.13 ENVIRONMENTAL LAWS
Except as set forth in Schedule 3.13 of Seller's Disclosure Schedules , or as identified in the Baseline Environmental Condition Reports:
25
Notwithstanding anything contained in this Agreement to the contrary, the representations and warranties contained in this Section 3.13 are Seller's exclusive representations and warranties with respect to any environmental matters of any kind (including environmental Damages, Environmental Laws, Environmental Conditions and Hazardous Materials).
3.14 INVENTORY
Except as set forth in Schedule 3.14 of Seller's Disclosure Schedules :
(a) Inventory Seed (exclusive of any Inventory Seed described in the third berger dot on Exhibit 2.1(a)(xi) ) that has been harvested as of the date of this Agreement or as of the Closing Date, as applicable, has been harvested, cleaned, conditioned and treated (if applicable) consistent with Seller's past practices in the Ordinary Course of Business; and
(b) All Inventory Seed (exclusive of any Inventory Seed described in the third berger dot on Exhibit 2.1(a)(xi) ) that has been harvested as of the date of this Agreement has, to the extent inspected and the results thereof have been received by Seller as of the date hereof, satisfied all material quality inspections completed by Seller in the Ordinary Course of Business.
26
3.15 WATER RIGHTS
Notwithstanding anything contained in this Agreement or the Warranty Deed (Nampa) to the contrary, Buyer acknowledges and agrees that Seller has not made, and hereby makes, no representation or warranty to Buyer concerning (i) Seller's right, title, or interest in or to water rights or entitlements to use water associated with the Purchased Assets, if any ( "Water Rights" ), (ii) the existence, condition, value, quality, or reliability of any Water Rights, or (iii) the suitability or fitness of any Water Rights for Buyer's intended purposes or any purpose. This provision shall survive Closing and shall not merge into the Warranty Deed (Nampa).
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Except as set forth in Buyer's Disclosure Schedules or as set forth in this Article 4 , Buyer hereby represents and warrants to Seller (a) as of the date of this Agreement, and (b) as of the Closing Date, as follows:
4.1 ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS
27
indenture, lease, license, contract, agreement or other instrument or obligation to which Buyer or any of its Affiliates is a party or by which it or any of its properties or assets may be bound excluding from the foregoing in this clause (ii) such violations, breaches or defaults which would not reasonably be expected to, individually or in the aggregate, have an adverse effect on Buyer's ability to consummate the Contemplated Transactions in any material respect;
4.2 LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS
4.3. BROKERS OR FINDERS
None of Buyer or any of its Affiliates has incurred any Liability for brokerage or finders' fees or agents' commissions or other similar payments in connection with this Agreement or the Contemplated Transactions.
4.4 PAYMENTS OF BUYER
28
4.5 Inspections; No Other Representations
Buyer, for and on behalf of itself and its Affiliates, hereby acknowledges and agrees that, except as expressly provided otherwise in this Agreement, the Purchased Assets are licensed or sold, as applicable, "as is" and "where is" and Buyer agrees to accept, and to cause its applicable Affiliates to accept, the Purchased Assets in the condition they are in at the Closing Date. Buyer, for and on behalf of itself and its Affiliates, hereby acknowledges and agrees that (a) Buyer has conducted its own investigation and due diligence with respect to (i) the Purchased Assets, (ii) the Products, and (iii) the Contemplated Transactions, and (b) except as expressly set forth in Article 3 (and the related portions of Seller's Disclosure Schedules and Exhibits expressly referenced in Article 3 ), neither Seller nor any other Person has made any representation or warranty (express or implied) of any kind (including as to accuracy or completeness) on behalf of Seller or its Affiliates with respect to the Purchased Assets, the Products, the Contemplated Transactions, Seller, its Affiliates or their respective operations and/or any matter relating thereto (including with respect to (i) the future performance of the Purchased Assets or the Products, (ii) any projections, estimates or budgets delivered or made available to Buyer or any of its Affiliates, or Buyer's or any of its Affiliates' counsel, accountants or advisors of future revenues, future results of operations (or any component thereof), future cash flows, future financial condition (or any component thereof), future business or future operations or (iii) any other information and/or documents delivered or made available to Buyer or any of its Affiliates, or Buyer's or any of its Affiliates' counsel, accountants or advisors, or any omissions therefrom, in all events with respect to the Purchased Assets, the Products, the Contemplated Transactions, Seller, its Affiliates or their respective operations, and/or any matter relating thereto (including any information and/or documents delivered or made available during or in connection with Buyer's or any of its Affiliates' due diligence and any information and/or documents delivered or made available in any "data room")) and Buyer, for and on behalf of itself and its Affiliates, hereby expressly disclaims reliance on any representation or warranty (express or implied) of any kind (including as to accuracy or completeness) except for those representations and warranties expressly set forth in Article 3 (and the related portions of Seller's Disclosure Schedules and Exhibits expressly referenced in Article 3 ). Buyer, for and on behalf of itself and its Affiliates, acknowledges and agrees that, in making its decision to enter into this Agreement and the Contemplated Transactions, Buyer is relying exclusively on (A) its own independent investigation, inspection, examination, review, analysis and determination and (B) the representations and warranties expressly set forth in Article 3 (and the related portions of Seller's Disclosure Schedules and Exhibits expressly referenced in Article 3 ).
29
ARTICLE 5. COVENANTS
5.1 EXECUTION AND DELIVERY OF OTHER TRANSACTION DOCUMENTS
At or prior to the Closing, and in addition to entering into and delivering this Agreement, Seller and Buyer shall, and/or shall cause their respective applicable Affiliates to, enter into and deliver the other Transaction Documents required to be entered into and delivered by such parties at or prior to the Closing.
5.2 ACCESS AND INVESTIGATION
30
Purchased Assets, (III) this Agreement or any other Transaction Document or (IV) solely with respect to the Transferred Employees, any other matter with respect to which any Transferred Employee would reasonably be expected to have knowledge in connection with or relating to their employment with Seller or its Affiliates.
5.3 CONFIDENTIALITY
31
32
disclosing party that the receiving party and its Affiliates have destroyed, all Confidential Information of the disclosing party and its Affiliates provided to the receiving party, its Affiliates and their respective employees, consultants, agents and attorneys in connection with the Contemplated Transactions.
5.4 PUBLICITY
No public release or announcement concerning this Agreement, any other Transaction Document or the Contemplated Transactions shall be issued by either party or its Affiliates without the prior written consent of the other party, except to the extent such release or announcement may be required by a Legal Requirement or the rules or regulations of any U.S. or foreign securities exchange, in which case the releasing party shall allow the other party reasonable time to comment on such release or announcement in advance of its issuance. Notwithstanding the foregoing, unless the parties otherwise agree in writing, Buyer and Seller shall cooperate and consult with each other to prepare a mutually acceptable joint press release (or substantially similar mutually acceptable separate press releases) to be issued following the execution of this Agreement, and thereafter, each party and its Affiliates may issue further press releases or public announcements without the consent of the other party so long as such further press releases or announcements are consistent with, and not broader in scope than, the mutually approved press release(s).
5.5 TRANSFER TAXES; PRO-RATIONS
33
5.6 CERTAIN DOCUMENTS
Upon the request of a party, the other party shall, and shall cause its Affiliates to, execute, deliver and file, after good faith discussions, any and all agreements and other documents reflecting or incorporating all or any of the provisions contained in this Agreement to the extent such execution, delivery and/or filing is reasonably required by, or supports compliance with, any Legal Requirement, or is otherwise necessary, to effect the transfer of the Purchased Assets from Seller (or its Affiliates) to Buyer (or its Affiliates) as provided in this Agreement; provided , however , that nothing contained in such agreements and documents shall modify any of the provisions contained in this Agreement and in the event of a conflict between any provision contained in such agreements or documents and any provision contained in this Agreement, then the provision contained in this Agreement shall control.
5.7 NON-ASSIGNABLE ASSETS
Notwithstanding anything contained in this Agreement or any other agreement to the contrary, nothing in this Agreement or any other agreement shall be construed as an attempt by Seller or its Affiliates to transfer or assign to Buyer or its Affiliates any asset, if by its terms such asset is not transferable or assignable without the Consent of another party or parties unless such Consent shall have been given. If the transfer or assignment of such asset by Seller or its Affiliates to Buyer or its Affiliates requires the Consent of a third party and such third-party Consent is not obtained prior to the Closing, the parties shall proceed with the Closing, the parties shall use commercially reasonable efforts to obtain such third-party Consent after the Closing and, until such time as it shall have been obtained, the parties shall cooperate to provide that Buyer and/or its Affiliate shall receive the benefits under such asset which and when it would be entitled if such third-party Consent had been obtained at or prior to the Closing; provided , that (a) Seller will promptly pay to Buyer when received all monies received by Seller or any Affiliate under any such Purchased Asset or any claim or right or any benefit arising thereunder and (b) Buyer shall, and shall cause its Affiliates to, pay, satisfy and perform the corresponding Liabilities relating to such asset to the extent that and at the time when Buyer and/or its Affiliates would have been responsible therefor if such third-party Consent had been obtained, and such asset assigned to Buyer or its Affiliate at the Closing, and such Liabilities
34
shall be deemed Assumed Liabilities for purposes of this Agreement. Once such third-party Consent is obtained, Seller shall, and shall cause its Affiliates to, transfer and assign to Buyer or its Affiliate, and Buyer shall, and shall cause its Affiliates to, accept and assume from Seller or its Affiliate, as applicable, such asset at no additional cost. Except as set expressly forth in this Section 5.7 , Buyer acknowledges and agrees that Seller and its Affiliates shall not have any Liability whatsoever (including any Liability under Article 9 ) to Buyer or any of its Affiliates arising out of or relating to the failure to obtain such third-party Consent.
5.8 DELIVERY OF CERTAIN PURCHASED ASSETS; CERTAIN EXCLUDED ASSETS; MAINTENANCE OF TRANSFERRED PATENTS; INVENTORY SEED
35
36
Transferred Patents, for drafting and filing any patent applications on any inventions contained in the Transferred Know-How, and for any fees associated therewith. Seller shall also timely pay (or cause to be paid) on behalf of Buyer or its Affiliates any annuity and maintenance fees for Transferred Patents on and after the Closing Date and continuing through the end of the second (2 nd ) full calendar month immediately after the Closing Date. Seller shall invoice Buyer for any such fees paid by Seller during such time period and Buyer shall pay to Seller such fees within thirty (30) days of the date of such invoice(s). No later than sixty (60) days after the Closing Date, Seller shall mail (or cause to be mailed) a paper or electronic copy of all its records on the Transferred Patents to a contact to be provided by Buyer in writing.
5.9 EMPLOYEE MATTERS
37
accordance with such Legal Requirements. Each Active Employee shall have not less than ten (10) days to respond to Buyer's or its Affiliate's offer of employment. No later than the Business Day immediately prior to the Closing Date, Buyer or its Affiliates shall provide written notice to Seller specifying which Employees have, and which such Employees have not, accepted Buyer's or its Affiliate's offer of employment and shall include a copy of Buyer's or its Affiliate's written offer of employment for each such Employee that has not accepted Buyer's or its Affiliate's offer of employment.
38
the parties to this Agreement, and nothing in this Section 5.9 , express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 . Nothing contained in this Agreement, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.9 shall not create any right in any Person to any continued employment with Buyer or any of its respective Affiliates or compensation or benefits of any nature or kind whatsoever.
5.10 PERMITS
Seller shall use commercially reasonably efforts to cooperate with Buyer in Buyer's or its Affiliate's efforts to obtain any Permits, licenses and/or registrations that shall be reasonably necessary, under applicable Legal Requirements, for Buyer or its Affiliates to own the Purchased Assets at, and operate at, the Transferred Plant Sites and the Premises, as applicable, upon the Closing (collectively, "Authorizations" ); provided , however , that (i) Buyer shall reimburse Seller and its Affiliates for any reasonable fees, expenses and other costs incurred by Seller and its Affiliates in connection with such efforts promptly following receipt of a written request for reimbursement, and (ii) each party shall appoint one employee as the primary point of escalation contact for the other party with respect to such party's obligations pursuant to this Section 5.10 , and the parties shall notify each other of the name and relevant contact information for such employee as soon as reasonably practicable following the Closing Date. To the extent information is needed for Buyer's preparation of applications or related documents in respect of such necessary Authorizations and to the extent such information is then in Seller's possession, Seller shall use commercially reasonably efforts to provide copies of such information in a timely manner, which information may include copies of relevant Authorizations that are held by Seller with regard to the operation of the Transferred Plant Site and/or the Premises; provided , further , that Seller shall be permitted to withhold or, to the extent reasonably feasible, redact, any confidential or proprietary information (including, without limitation, any information that is subject to any confidentiality obligation to any third party). Notwithstanding Seller providing any information or other assistance, Buyer shall be responsible for the applications and other documents submitted and filed to obtain the Authorizations.
5.11 REQUIRED APPROVALS; CONSENTS
Except as set forth herein, beginning on the date of this Agreement, each party shall, and shall cause its applicable Affiliates to, (a) promptly (in any event, no later than five (5) Business Days after the date of this Agreement) make, or cause to be made, all filings, submissions and/or notifications required by Legal Requirements to be made by them (or their applicable Affiliates) to consummate the Contemplated Transactions, (b) cooperate with the other party with respect to all filings, submissions and/or notifications that the other party and its applicable Affiliates are required by Legal Requirements to make in connection with the Contemplated Transactions, (c) use their commercially reasonable efforts to obtain any waiver, authorization, clearance, Consent, or approval required to be obtained from any Governmental Body, and to make any
39
further filings, submissions and/or notifications pursuant thereto that may be necessary, proper or advisable, (d) cooperate with the other party and its applicable Affiliates in obtaining the Consents identified in Schedule 3.1(d) of Seller's Disclosure Schedules and the Consents identified in Schedule 4.1(d) of Buyer's Disclosure Schedules , (e) promptly respond to all communications from a Governmental Body with respect to such Consents, filings, submissions or notifications, after consultation with the other party and (f) pursue all available appeals or other permissible actions necessary to reach final resolution with respect to such Consents; provided , however , notwithstanding the foregoing, nothing in this Agreement shall be construed to require Seller or any of its Affiliates to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber before or after the Closing, any assets, licenses, operations, rights, product lines, businesses or interest therein of Seller or any of its Affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by such parties of any of their respective assets, licenses, operations, rights, product lines, businesses or interest therein or to any agreement to take any of the foregoing actions) to eliminate any legal impediment arising from the antitrust or competition laws of any jurisdiction, to obtain Consent or non-opposition to the transaction from the relevant Governmental Bodies or to permit the consummation of the Closing and the Contemplated Transactions on terms and conditions other than those set forth in the Transaction Documents.
5.12 CLOSING EFFORTS; NOTICES
(a) Subject to the terms and conditions of this Agreement, each party shall use commercially reasonable efforts to cause the Closing to occur and the transactions contemplated by this Agreement to be consummated, including the satisfaction of the conditions contained in Articles 6 and 7 .
(b) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Buyer and Seller shall give prompt written notice to the other party of any written notice or other written communication from any third party alleging that the Consent of such third party is or may be required in connection with the Contemplated Transactions, which Consent, if required, would Breach the representations contained in Articles 3 or 4 , as applicable.
5.13 OPERATION OF THE PURCHASED ASSETS
From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, Seller shall, and shall cause each of its Affiliates to, use its commercially reasonable efforts to operate the Purchased Assets in the Ordinary Course of Business (excluding herefrom the effects of any action undertaken expressly in accordance with any Transaction Document and except to the extent necessary to consummate the Contemplated Transactions). Without limiting the generality of the foregoing, until the Closing, except for actions expressly contemplated by this Agreement or any other Transaction Document to be taken by Seller or any of its Affiliates, or with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall not, and shall cause its Affiliates not to, during the period from the date of this Agreement to the Closing:
40
5.14 NON-SOLICITATION
(a) For a period of three (3) years after the Closing Date, Buyer shall not, and shall cause its Affiliates not to, directly or indirectly, individually or through any Person, solicit the employment of, hire, attempt to hire or employ any individual, who (i) is an employee of Seller or any of their Affiliates engaged in Seller's or its Affiliates' alfalfa distribution and sale business or (ii) is an employee of Seller or any of its Affiliates and first came into direct contact with Buyer or its Affiliates or representatives in connection with Buyer's investigation of the Purchased Assets, provided , however , that nothing in this Section 5.14(a) shall prevent Buyer or any of its Affiliates from engaging in a general solicitation which is not directed specifically to any such individual or from making offers to Employees or hiring any Transferred Employee or any such individual whose employment has been terminated involuntarily by Seller or its Affiliates. Buyer acknowledges and agrees that: (i) Buyer is receiving a substantial benefit and adequate consideration pursuant to the consummation of the Contemplated Transactions and (ii) the covenants provided for in this Section 5.14(a) and the restrictions on Buyer's and its Affiliates' activities set forth in this Section 5.14(a) are necessary and reasonable to protect Seller and its Affiliates.
(b) For a period of three (3) years after the Closing Date, Seller shall not, and shall cause its Affiliates not to, directly or indirectly, individually or through any Person, solicit the employment of, hire, attempt to hire or employ any individual, who (i) is a Transferred Employee or (ii) is an employee of Buyer or any of its Affiliates and first came into direct contact with Seller or its Affiliates or representatives in connection with Buyer's investigation of the Purchased Assets, provided , however , that nothing in this Section 5.14(b) shall prevent Seller or any of its Affiliates from engaging in a general solicitation which is not directed specifically to any such individual or from making offers to Transferred Employees or any such individual whose employment has been terminated involuntarily by Buyer or its Affiliates. Seller acknowledges and agrees that: (i) Seller is receiving a substantial benefit and adequate
41
consideration pursuant to the consummation of the Contemplated Transactions and (ii) the covenants provided for in this Section 5.14(b) and the restrictions on Seller's and its Affiliates' activities set forth in this Section 5.14(b) are necessary and reasonable to protect Buyer and its Affiliates.
(c) The invalidity or unenforceability of any provision or provisions of this Section 5.14 shall not affect the validity or enforceability of any other provisions of this Section 5.14 . If any provision of this Section 5.14 is determined to be invalid or unenforceable in any respect in any jurisdiction, it is the intention of the parties that the provisions of this Section 5.14 be enforceable to the maximum extent permitted in such jurisdiction, and the Governmental Body enforcing the provisions of this Section 5.14 in such jurisdiction is hereby authorized to revise such provisions (solely with respect to such jurisdiction) so that they are enforceable in such jurisdiction.
5.15 AUDIT
Within twenty (20) days following the Closing, Seller (at its own expense) will deliver to Buyer abbreviated audited financial statements, including Statements of Direct Revenues and Direct Operating Expenses and Statements of Net Assets to be Acquired for the nine (9) months ended September 30, 2014 and the fiscal years ended December 31, 2013 and 2012. Statements of Direct Revenues and Direct Operating Expenses would include revenues generated by sales of alfalfa seeds products that are derived from Pioneer germplasm, minus directly related expenses, and allocations of operating costs incurred by Seller directly related to the sales of alfalfa seeds products that are derived from Pioneer germplasm. Direct operating expenses would not include certain allocations of corporate overhead incurred for administrative support or an allocation of interest and income taxes. Statements of Net Assets to be Acquired as of the end of each period would present only the assets and liabilities specifically acquired by Buyer or its applicable Affiliates pursuant to the terms of this Agreement.
5.16 TRANSFERRED PLANT SITES
42
Commitment" ), issued by and through Fidelity National Title Insurance Company. Buyer acknowledges receipt of the NPS Title Commitment. The title insurance company hereunder for the Nampa Plant Site (the "NPS Title Company" ) shall be Fidelity National Title Insurance Company, acting through its agent, TitleOne Corporation, 1101 W. River St., Suite 201, Boise, ID 83702 Phone: (208) 287-5314 Fax: (208) 866-6981, attention Scott Thiel, email sthiel@TitleOneCorp.com (the "NPS Title Agency" ). The parties will instruct the NPS Title Agency to facilitate the transfer of the Nampa Plant Site on the terms set forth in this Agreement.
The APS Title Company and NPS Title Company are individually referred to as a "Title Company" and together as the "Title Companies" , and the APS Title Agency and NPS Title Agency referred to together as the "Title Agencies" .
43
Transferred Plant Sites may take place upon the consummation of the Closing in accordance with the terms and subject to the conditions set forth herein. In connection with the pre-closing in escrow, Seller and Buyer shall execute and deliver to each other a closing statement prepared by the respective Title Companies showing all charges, pro-rations and fees that are usual and customary in a sale of real estate where each Transferred Plant Site is located and the amounts by which the APS Purchase Price and the NPS Purchase Price shall have been adjusted, such adjustments to be made consistent with Section 5.5 of this Agreement.
5.17 ENVIRONMENTAL MATTERS
44
45
Sites and all structures located thereon and to documents and information to the extent reasonably necessary, in the sole opinion of the Environmental Consultant, to conduct and complete the Baseline Assessments and any further assessment to be conducted in accordance with Section 5.17(d) . Following the Closing, Buyer shall, and shall cause its Affiliates to, provide to the Environmental Consultant, its Affiliates and their respective representatives investigating, evaluating or performing the Baseline Assessments, full and free access on and after the Closing to the Transferred Plant Sites and all structures located thereon and to documents and information to the extent reasonably necessary, in the sole opinion of the Environmental Consultant, to complete the Baseline Assessments and any further assessment to be conducted in accordance with Section 5.17(d) .
5.18 OMITTED INTELLECTUAL PROPERTY
In the event that, on or before the date that is twenty-four (24) months after the Closing Date, Buyer becomes aware of any Know-How, patents, germplasm or plant variety protection certificates ( "Omitted Intellectual Property" ) that (a) were not included in the Transferred Intellectual Property and (b) the failure to include such Know-How, patents, germplasm or plant variety protection certificates in the Transferred Intellectual Property would result in a Breach of Section 3.9(b) , Buyer shall notify Seller in writing, identifying such Know-How, patents, germplasm or plant variety protection certificates with reasonable specificity and setting forth Buyer's good faith basis for belief that such Know-How, patents, germplasm or plant variety protection certificates constitutes Omitted Intellectual Property (each, a "Notice of Omitted Intellectual Property" ). Upon receipt of any Notice of Omitted Intellectual Property, Seller shall promptly investigate such matter and within thirty (30) Business Days shall notify Buyer either that:
46
If the parties are unable to resolve any dispute with respect to any Notice of Omitted Intellectual Property within sixty (60) days after Buyer's receipt of the above described notice from Seller, such dispute shall be resolved in accordance with Section 10.3 . For the avoidance of doubt, the issues to be resolved in any such dispute shall be limited to (x) whether the relevant Omitted Intellectual Property was included in the Transferred Intellectual Property and (y) whether the failure to include such Omitted Intellectual Property would amount to a Breach of Section 3.9(b) .
5.19 SECOND APSA
_______________
5
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
6
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
7
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
8
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
9
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
10
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
11
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
12
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
13
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
14
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
15
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
16
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
17
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
18
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
47
Distribution Agreement in accordance with the terms thereof, Seller shall use its commercially reasonable efforts to (i) obtain the Second APSA Consents, (ii) reasonably cooperate with Buyer in its efforts to obtain the Second APSA Agreements, to the extent such cooperation would not otherwise result in a violation, breach or default of any agreement, contract or arrangement to which Seller or its Affiliates is a party or otherwise require Seller to disclose third party proprietary or confidential information, (iii) amend or terminate any applicable agreements (exclusive of any Second Closing Asset) by and between Seller or its Affiliates, on the one hand, and [**] 19 and/or [**] 20 , on the other hand, to the extent necessary to terminate any ongoing research, collaboration and/or development obligations on the part of Seller or its Affiliates, in all events, in the forms reasonably satisfactory to Seller, and (iv) enter into agreements, or amend existing agreements, with [**] 21 or its successors and [**] 22 or its successors, as applicable, and in a manner reasonably satisfactory to Seller, to the extent required to enable Seller or its Affiliates to distribute alfalfa varieties containing either or both of [**] 23 and [**] 24 pursuant to the Distribution Agreement or otherwise, in the event that the Parties shall not consummate the Closing (as such term is defined in the Second APSA) under the Second APSA.
_______________
19
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
20
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
21
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
22
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
23
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
24
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
48
within such period; and (2) the Distribution Agreement shall remain in full force and effect, and no event or circumstance shall have occurred that, with notice or lapse of time or both, would constitute a breach or event of default by Seller under the Distribution Agreement.
_______________
25
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
26
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
49
Business, except to comply with Sellers' or its Affiliate's obligations under Seller's or its Affiliate's agreements with [**] 27 and/or [**] 28 (or their respective successors and assigns); or
5.20 GROWER CONTRACTS
From and after the date of this Agreement until the date that is one (1) Business Day prior to the Closing Date, Seller may, with Buyer's written consent (which shall not be unreasonably withheld, conditioned or delayed), update Exhibit 2.1(a)(v) to include any grower contracts executed on or after the date of this Agreement pursuant to which a grower is growing Products, which grower contracts shall be deemed to be Transferred Contracts. On the date that is one (1) Business Day prior to the Closing Date, Seller shall deliver to Buyer a true and complete copy of Exhibit 2.1(a)(v) , if updated pursuant to this Section 5.20 .
5.21 BUYER FINANCING
From and after the date hereof, and until the earlier of the Closing or the termination of this Agreement in accordance with the terms hereof, Buyer shall use its commercially reasonable efforts to secure all financing necessary to pay the cash portion of the Purchase Price; provided that such financing shall in any case be on terms and conditions acceptable to Buyer. From and after the date hereof, and until the earlier of the Closing or the termination of this Agreement in accordance with the terms hereof, Seller shall negotiate, in good faith, with Buyer's other secured lenders, the terms and conditions of an Intercreditor Agreement, on terms agreeable to all parties thereto.
ARTICLE 6. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
The obligation of Seller at the Closing to consummate the transactions contemplated herein shall be subject to the waiver by Seller or the satisfaction on or prior to the Closing Date of each of the following conditions, except to the extent the failure of such condition to be satisfied is due to the fault of Seller:
6.1 ACCURACY OF REPRESENTATIONS; PERFORMANCE OF OBLIGATIONS
Each of (i) the representations and warranties of Buyer set forth in Sections 4.1 , 4.2 , and 4.4 shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties that are made solely as of an earlier date, which shall be true and correct as of such earlier date), and (ii) the other representations and warranties of Buyer set forth in Article 4 shall be true and correct (disregarding for this purpose all references to "material", "material adverse effect" and similar qualifications as to materiality set forth therein) as of the Closing Date (other than those representations and warranties that are made solely as of an earlier date, which shall be true and correct as of such earlier date), except, in the case of this clause (ii) , where any such failure to be true and correct does not, individually or in the
_______________
27
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
28
Omitted and filed separately with the SEC pursuant to a confidential treatment request.
50
aggregate, have a material adverse effect on Buyer's ability to consummate the Contemplated Transactions. Buyer shall have performed and complied with, in all material respects (considered individually and collectively), all of its covenants and obligations required to be performed by it under this Agreement at or prior to the Closing; provided , that Buyer shall be given thirty (30) Business Days to cure any failure to perform any such covenants or obligations which are capable of being cured within such period.
6.2 CONSENTS
Each party shall have made all filings and obtained all Consents required to be made to, or obtained from, any Governmental Body, if any, as identified in Exhibit 6.2 and all such Consents shall be in full force and effect. The Consents on Exhibit 6.2 shall have been obtained by Seller on or prior to December 24, 2014. Buyer shall have delivered to Seller, on or prior to December 24, 2014, such documents as shall be sufficient, in Seller's reasonable discretion, to demonstrate that Buyer has obtained the Consent of Wells Fargo as reflected on Exhibit 7.2 .
6.3 BUYER'S DELIVERIES
At Closing, Buyer shall have delivered to Seller:
51
6.4 NO PROCEEDINGS; NO LEGAL REQUIREMENT
No Legal Requirement shall be in effect which prohibits or materially restricts the Contemplated Transactions at the Closing, or which otherwise adversely affects in any material respect the right or the ability of Seller or its Affiliates to sell, transfer or assign the Purchased Assets, in whole or material part, and no Proceeding (that has not been withdrawn, dismissed with prejudice, rescinded or otherwise eliminated) is pending before, or Threatened by, any Governmental Body which is reasonably likely to result in a Legal Requirement having such effect.
6.5 NO PROHIBITION
Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), result in a violation of any Legal Requirement.
6.6 LENDER'S POLICY; OTHER REAL ESTATE MATTERS
(a) Each Title Company is prepared to issue an extended coverage lender's policy in an amount equal to the APS Purchase Price and the NPS Purchase Price, respectively, in a form satisfactory to Seller, together with any applicable endorsements requested by Seller, insuring that the lien created against the Nampa Plant Site and the Arlington Plant Site by the Deed of Trust (Nampa) and the Mortgage (Arlington), respectively, are each a first position priority lien.
(b) Any of Buyer's secured lenders that shall create a lien against the Nampa Plant Site and the Arlington Plant Site shall have (i) delivered to Seller the form of deed of trust or mortgage, as applicable, that such secured lender shall intend to file, and which shall be in form and substance reasonably acceptable to Seller, and (ii) delivered to the applicable Title Agency an escrow letter instructing the applicable Title Agent to file or record such instrument following the filing or recording of the Deed of Trust (Nampa) or the Mortgage (Arlington), as applicable, which such escrow letter shall be in form and substance reasonably acceptable to Seller.
6.7 FINANCING
On or prior to 11:59 a.m. Eastern Standard Time on December 24, 2014, Buyer shall have obtained (on terms and conditions satisfactory to it) all of the financing it needs in order to pay the cash portion of the Purchase Price, and delivered to Seller such documents as shall be sufficient, in Seller's reasonable discretion, to demonstrate that Buyer has obtained all of the financing it needs to pay the cash portion of the Purchase Price.
6.8 INTERCREDITOR AGREEMENT
Seller and the other secured lenders that are parties to the Intercreditor Agreement shall have agreed upon a definitive form thereof, and Buyer shall have delivered to Seller one (1) counterpart to the Intercreditor Agreement, duly executed by the other secured lenders that are a party thereto.
52
ARTICLE 7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
The obligation of Buyer at the Closing to consummate the transactions contemplated herein shall be subject to the waiver by Buyer or the satisfaction on or prior to the Closing Date of each of the following conditions, except to the extent the failure of such condition to be satisfied is due to the fault of Buyer:
7.1 ACCURACY OF REPRESENTATIONS; PERFORMANCE OF OBLIGATIONS
Each of (i) the representations and warranties of Seller set forth in Sections 3.1 , 3.2 and 3.3 shall be true and correct in all material respects as of the Closing Date (other than those representations and warranties that are made solely as of an earlier date, which shall be true and correct as of such earlier date), and (ii) the other representations and warranties of Seller set forth in Article 3 shall be true and correct (disregarding for this purpose all references to "material", "Material Adverse Effect" and similar qualifications as to materiality set forth therein) as of the Closing Date (other than those representations and warranties that are made solely as of an earlier date, which shall be true and correct as of such earlier date), except, in the case of this clause (ii) , where any such failure to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Seller shall have performed and complied with, in all material respects (considered individually and collectively), all of its covenants and obligations required to be performed by it under this Agreement at or prior to the Closing; provided , that Seller shall be given thirty (30) Business Days to cure any failure to perform any such covenants or obligations which are capable of being cured within such period.
7.2 CONSENTS
Each party shall have made all filings and obtained all Consents required to be made to, or obtained from, any Governmental Body or other Person, if any, as identified in Exhibit 7.2 and all such Consents shall be in full force and effect.
7.3 SELLER'S DELIVERIES
At Closing, Seller shall have delivered, or caused to have been delivered, to Buyer:
53
7.4 NO PROCEEDINGS; NO LEGAL REQUIREMENT
No Legal Requirement shall be in effect which prohibits or materially restricts the Contemplated Transactions at the Closing, or which otherwise adversely affects in any material respect the right or the ability of Buyer or its Affiliates to own, operate and control the Purchased Assets, in whole or material part, and no Proceeding (that has not been withdrawn, dismissed with prejudice, rescinded or otherwise eliminated) is pending before, or Threatened by, any Governmental Body which is reasonably likely to result in a Legal Requirement having such effect.
7.5 NO PROHIBITION
Neither the consummation nor the performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time), result in a violation of any Legal Requirement.
7.6 INVENTORY AND GROWER COMMITMENTS
The sum of (i) the harvested Inventory Seed and (ii) grower commitments to deliver alfalfa seed for the 2014 harvest (that would, if harvested, constitute Inventory Seed) under the applicable Transferred Contracts shall equal not less than 104,000 Units (as such term is defined in the Distribution Agreement) as of the Closing.
7.7 FINANCING
Buyer shall have obtained (on terms and conditions satisfactory to it) all of the financing it needs in order to pay the cash portion of the Purchase Price.
7.8 INTERCREDITOR AGREEMENT
Seller shall have executed and delivered the Intercreditor Agreement with Buyer's other secured creditors.
54
ARTICLE 8. TERMINATION
8.1 TERMINATION EVENTS
This Agreement may, by written notice given prior to or at the Closing, be terminated:
8.2 EFFECT OF TERMINATION
ARTICLE 9. INDEMNIFICATION; REMEDIES
9.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER
From and after the Closing, Seller shall indemnify, defend and hold harmless Buyer and its Affiliates and their respective directors, officers, employees, stockholders, and members (collectively, the "Buyer Indemnified Persons" ) for, and shall pay to each Buyer Indemnified Person the amount of, any Liabilities and/or judgments (including reasonable legal, accounting
55
and other professional fees and expenses and court costs) (collectively, "Damages" ) incurred or suffered by such Buyer Indemnified Person, directly or indirectly (whether or not due to a Third Party Claim), arising out of, resulting from or relating to (a) any Breach by Seller of any representation or warranty made by Seller in this Agreement, (b) any Breach by Seller of any covenant or obligation of Seller in this Agreement, or (c) any Excluded Liability; provided , however , that notwithstanding the foregoing, (i) Seller's exclusive obligations to indemnify, defend and hold harmless the Buyer Indemnified Persons for any such Damages arising out of or relating to the Inventory Seed including, without limitation, with respect to a breach of Section 3.14 ) shall be as set forth in Section 9.8 , and (ii) Seller's exclusive obligations to indemnify, defend and hold harmless the Buyer Indemnified Persons for any such Damages arising out of or relating to Pre-Closing Environmental Conditions shall be as set forth in Section 9.9 .
9.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER
From and after the Closing, Buyer shall indemnify, defend and hold harmless Seller and its Affiliates and their respective directors, officers, employees, stockholders, and members (collectively, the "Seller Indemnified Persons" ) for, and shall pay to each Seller Indemnified Person the amount of, any Damages incurred or suffered by such Seller Indemnified Person, directly or indirectly (whether or not due to a Third Party Claim), arising out, resulting from, of or relating to (a) any Breach by Buyer of any representation or warranty made by Buyer in this Agreement, (b) any Breach by Buyer of any covenant or obligation of Buyer in this Agreement, or (c) any Assumed Liability.
9.3 SURVIVAL; TIME LIMITATIONS
All representations and warranties of Seller and Buyer in this Agreement and the indemnification obligations under Section 9.1(a) and 9.2(a) shall survive the Closing and terminate and expire on the date that is eighteen (18) months after the Closing, provided , however , that (i) the representations and warranties in Section 3.12 and Section 3.13 (and indemnification obligations under Section 9.1(a) with respect thereto) shall survive the Closing and shall terminate upon the expiration of the applicable statute of limitations (giving effect to any waiver, mitigation or extension thereof), (ii) the representations and warranties in Section 3.9 (and indemnification obligations under Section 9.1(a) with respect thereto) shall survive the Closing and shall terminate at the close of business on the date that is twenty-four (24) months after the Closing Date and (iii) the representations and warranties in Sections 3.1 , 3.2 , 3.15 , 4.1 , 4.2 and 4.5 (and indemnification obligations under Section 9.1(a) and 9.2(a) with respect thereto) shall survive indefinitely; and provided , further , that if written notice of any claim for indemnification under Section 9.1(a) or 9.2(a) has been given within the applicable survival period, then, solely with respect to the subject matter of such indemnification claim, the applicable representations and warranties and the indemnification obligations under Section 9.1(a) , 9.2(a) , as applicable, shall survive until such claim is finally resolved in accordance with the terms of this Agreement. The indemnification obligations under Section 9.8 shall survive the Closing and shall terminate at the close of business on the date that is twelve (12) months after the Closing Date and the indemnification obligations under Sections 9.1(b) , 9.1(c) , 9.2(b) , 9.2(c) , Sections 9.9, and Section 10.12 , as applicable, shall each survive the Closing until the expiration of the applicable statute of limitations (giving effect to any waiver, mitigation or extension
56
thereof) with respect to the indemnification claim being asserted; provided , however , that if written notice of any claim for indemnification under Sections 9.1(b) , 9.1(c) , 9.2(b) , 9.2(c) , 9.8 , Section 9.9, or Section 10.12 , as applicable, has been given within the applicable survival period, then, solely with respect to the subject matter of such indemnification claim, the indemnification obligations under Sections 9.1(b) , 9.1(c) , 9.2(b) , 9.2(c) , 9.8 , 9.9 and Section 10.12 , as applicable, shall survive until such claim is finally resolved in accordance with the terms of this Agreement. The right to indemnification or other remedy of Buyer or its Affiliates hereunder based on the representations, warranties, covenants and agreements herein will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, by Buyer or its Affiliates prior to the Closing, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement.
9.4 LIMITATIONS ON DAMAGES
57
consequential, special, indirect, punitive or exemplary Damages, including lost profits (other than, for the avoidance of doubt, lost profits that would constitute general, direct Damages), other than for such Damages or lost profits actually incurred by the Indemnified Person pursuant to a Third-Party Claim within the scope of the indemnification obligations set forth in this Article 9 and Section 10.12 . Each party agrees that it shall not set-off or apply any Damages or other payment obligations owed to it by the other party under this Agreement or any other Transaction Document against any amounts owed by it to the other party under this Agreement, any other Transaction Document or any other agreement.
9.5 PROCEDURE FOR INDEMNIFICATION-THIRD-PARTY CLAIMS
58
and (iii) the terms of such compromise or settlement include a full and unconditional release of the Indemnified Person from all Liability with respect to such Third-Party Claim. Without the Indemnifying Person's prior written consent, which shall not be unreasonably withheld, conditioned or delayed, no Indemnified Person may settle or compromise any Third-Party Claim or consent to the entry of any judgment for which the Indemnified Person is seeking indemnification under Section 9.1 , 9.2 , 9.8 , 9.9 or 10.12 , as applicable, unless the Indemnifying Person fails to assume and maintain the defense of such Third-Party Claim pursuant to this Section 9.5(b) . If it is ultimately determined that the Indemnifying Person is not obligated to indemnify, defend or hold harmless the Indemnified Person in connection with any Third-Party Claim, then the Indemnified Person shall promptly reimburse the Indemnifying Person for any and all costs and expenses (including reasonable attorney's fees and court costs) incurred by the Indemnifying Person in its defense of such Third-Party Claim.
9.6 PROCEDURE FOR INDEMNIFICATION-OTHER CLAIMS
In the event any Indemnified Person shall have a claim for indemnification for any matter not involving a Third-Party Claim, the Indemnified Person shall promptly deliver written notice of such claim to the Indemnifying Person, specifying with reasonable particularity the claim and the basis for such claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Person of their indemnification obligations, except and only to the extent that such failure materially increases the Damages of the Indemnified Person in respect of such matter.
9.7 NET RECOVERY; MITIGATION; TREATMENT; ETC.
The amount of any Damages for which indemnification is provided under Section 9.1 , 9.2 , 9.8 , 9.9 or 10.12 , as applicable, shall be net of (a) any amounts recovered by the Indemnified Person pursuant to any indemnification by, or indemnification agreement with, any third party who has brought any such claim or demand, and (b) any unaffiliated third party insurance proceeds or other cash receipts or sources of reimbursement received from an unaffiliated third party as an offset against or otherwise covering such Damages, in each case, net of all reasonable out-of-pocket costs and expenses actually incurred by the Indemnified Person in obtaining such amounts or proceeds), provided , however , that (i) the existence of a claim by an Indemnified Person for monies from an insurer or against a third party in respect of any Damages shall neither restrict the ability of an Indemnified Party to bring a claim under Section 9.1 , 9.2 , 9.8 , 9.9 or 10.12 in respect of such Damages nor delay any payment pursuant to Article 9 hereof and (ii) no Indemnified Party shall have any obligation to purchase or maintain any insurance or other third party coverage, or to affirmatively pursue the collection of any insurance or other third party proceeds, regardless of whether such Indemnified Party has suffered or incurred any Damages for which such Indemnified Party has insurance coverage or indemnification or other rights. If the amount to be netted hereunder from any payment required under Section 9.1 , 9.2 , 9.8 , 9.9 or 10.12 , as applicable, is determined after payment by the Indemnifying Person of any amount otherwise required to be paid to an Indemnified Person pursuant to this Article 9 , then the Indemnified Person shall repay to the Indemnifying Person, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant to this Article 9 had such determination been made at the time of such payment by the Indemnifying Person. The parties shall take and shall cause their Affiliates to take all
59
commercially reasonable steps in accordance with Legal Requirements to mitigate any Damages for which indemnification is provided under Section 9.1 , 9.2 , 9.8 , 9.9 or 10.12 , as applicable, upon becoming aware of any event that would reasonably be expected to, or does, give rise to such Damages. Any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a final determination with respect to the Indemnified Person or any of its Affiliates causes any such payment not to be so treated.
9.8 LIMITATIONS OF LIABILITY AND INDEMNIFICATION RELATING TO THE INVENTORY SEED
9.9 LIMITATIONS OF LIABILITY AND INDEMNIFICATION RELATING TO ENVIRONMENTAL CONDITIONS
60
harmless the Buyer Indemnified Persons for, and shall pay to each Buyer Indemnified Person the amount of, any Damages actually incurred by such Buyer Indemnified Person, arising out of or relating to any Pre-Closing Environmental Condition that is a Recognized Environmental Condition with respect to each such Transferred Plant Site and that requires Remediation under applicable Environmental Law, as enacted as of the Closing Date, consistent with industrial land use; provided , however , that Seller shall have no liability under this Section 9.9 with respect to any Damages arising out of or relating to aggravating circumstances or events caused or permitted by any Buyer Indemnified Person after the Closing (excluding any such Damages arising out of or relating to Remediation performed, or caused to be performed, by Seller or its Affiliates); provided , further , that Seller shall have no liability under this Section 9.9 with respect to any Damages to the extent arising out of or relating to:
For the avoidance of doubt, if the Environmental Consultant shall have delivered (or be deemed to have delivered) a Clean Report with respect to a Transferred Plant Site, none of Seller or its Affiliates shall have any obligation to indemnify, defend or hold harmless any Buyer Indemnified Person, and none of the Buyer Indemnified Persons shall be entitled to indemnification, pursuant to this Section 9.9 or with respect to any Damages arising out of or relating to any Pre-Closing Environmental Condition or any Post-Closing Environmental Condition with respect to such Transferred Plant Site, and if the Environmental Consultant shall have delivered (or be deemed to have delivered) a Clean Report with respect to both Transferred Plant Sites, none of Seller or its Affiliates shall have any obligation to indemnify, defend or hold harmless any Buyer Indemnified Person, and none of the Buyer Indemnified Persons shall be entitled to indemnification, pursuant to this Section 9.9 or with respect to any Damages arising out of or relating to any Pre-Closing Environmental Condition or any Post-Closing Environmental Condition.
61
Closing Date, consistent with industrial land use, Seller shall not be liable, and none of the Buyer Indemnified Persons shall be entitled to indemnification, for any Damages arising out of or relating to such Pre-Closing Environmental Condition.
62
relating to an Environmental Condition at, involving or relating to a Transferred Plant Site covered by the indemnities set forth in this Agreement, any Environmental Conditions that are not specifically identified or disclosed (in type, scope, quantity and level) in the Baseline Environmental Condition Reports as Recognized Environmental Conditions that requires Remediation under applicable Environmental Law, as enacted as of the Closing Date, consistent with industrial land use, shall be deemed to be Post-Closing Environmental Conditions, and conclusively determined to have been caused by Buyer and shall be the sole and exclusive responsibility of Buyer.
ARTICLE 10. GENERAL PROVISIONS
10.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to this Agreement shall bear its respective expenses incurred in connection with the preparation, execution and performance of this Agreement, any other Transaction Document and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel and accountants.
10.2 NOTICES
All notices, consents, waivers, and other communications under this Agreement must be in writing and shall be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) upon written confirmation of receipt when sent by facsimile transmission; provided , that a hard copy is mailed by registered mail, return receipt requested promptly thereafter or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses set forth below (or to such other addresses as a party may designate by notice to the other parties):
If to Seller :
Pioneer Hi-Bred International, Inc.
Attention: President
DuPont Pioneer
7100 N.W. 62nd Avenue
63
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-7066
With a copy to :
Pioneer Hi-Bred International, Inc.
Attention: General Counsel
DuPont Pioneer
7250 N.W. 62nd Avenue
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-4844
If to Buyer :
S&W Seed Company
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax: (559) 255-5457
10.3 DISPUTE RESOLUTION; GOVERNING LAW; JURISDICTION
64
concluded within one hundred twenty (120) days of service of the notice of arbitration, (ii) each party shall be limited to no more than ten (10) requests for the production of any single category of documents, and (iii) each party shall be limited to two (2) depositions each with a maximum time limit that shall not exceed four (4) hours. Each party shall be responsible for and shall pay for the costs and expenses incurred by such party in connection with any such arbitration; provided , however , that all filing and arbitrators' fees shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller. Each party does hereby irrevocably consent to service of process by registered mail, return receipt requested with respect to any such arbitration in accordance with and at its address set forth in Section 10.2 (as such address may be updated from time to time in accordance with the terms of Section 10.2 ). Any arbitration contemplated by this Section 10.3 shall be initiated by sending a demand for arbitration by registered mail, return receipt requested, to the applicable party in accordance with and at the address set forth in Section 10.2 (as such address may be updated from time to time in accordance with the terms of Section 10.2 ) and such demand letter shall state the amount of relief sought by the party making the demand. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
65
10.4 EQUITABLE RELIEF
Each party acknowledges and agrees that a non-breaching party would be irreparably harmed by any violation of the restrictive covenants set forth in Section 5.3 and that, in addition to all other rights and remedies available at law or in equity (which in all events shall be subject to the applicable limitations contained herein), the non-breaching party shall be entitled to seek injunctive and other equitable relief to prevent or enjoin any such violation.
10.5 NO IMPLIED WAIVERS; NO JURY TRIAL
Except as otherwise set forth herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor delay by any party in exercising any right, power or privilege under this Agreement or the documents referred to in this Agreement shall operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege shall preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT ALLOWED UNDER LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS.
10.6 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties with respect to its subject matter (including the Confidentiality Agreement) and constitutes (along with the other Transaction Documents) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by Buyer and Seller. Any items listed, set forth, described or otherwise disclosed on or in any part of this Agreement, Seller's Disclosure Schedules , the Schedules or the Exhibits hereto shall be deemed listed, set forth, described and otherwise disclosed on or in all other parts of this Agreement, Seller's Disclosure Schedules , the Schedules and the Exhibits hereto.
10.7 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
Neither party may assign any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, (a) Seller may assign or transfer this Agreement to an Affiliate, and (b) on any date after the Closing Date, Buyer may assign or transfer this Agreement to a wholly-owned Affiliate, provided that (i) Buyer shall have executed and delivered to Seller a guaranty in substantially the same form as the Guaranty, pursuant to which Buyer shall guaranty all of the obligations of such Affiliate under all of the Transaction Documents, and (ii) such Affiliate has agreed, in a writing reasonably acceptable to Seller, to be bound by the terms of this Agreement and to assume Buyer's obligations hereunder. This Agreement shall apply to, be binding in all respects upon and inure to the benefit of the successors and permitted assigns of the parties. Unless otherwise
66
expressly provided herein, nothing expressed or referred to in this Agreement shall be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and permitted assigns. Any attempted assignment in violation of this Section 10.7 shall be void.
10.8 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.
10.9 SECTION HEADINGS; CONSTRUCTION
The headings of Articles and Sections in this Agreement and the headings in the Schedules , Buyer's Disclosure Schedules , Seller's Disclosure Schedules and Exhibits attached hereto are provided for convenience only and shall not affect its construction or interpretation. With respect to any reference made in this Agreement to a Section (or Article , clause or preamble), Exhibit , or Schedule , such reference shall be to the corresponding section (or article, clause or preamble) of, or the corresponding exhibit or schedule to, this Agreement. All words used in this Agreement shall be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the words "including", "include" and "includes" do not limit the preceding words or terms and any list of words or terms following the words "including", "include" and "includes" is not an exhaustive list. Any reference to a specific "day" or to a period of time designated in "days" shall mean a calendar day or period of calendar days unless the day or period is expressly designated as being a Business Day or period of Business Days. The use of "or" is not intended to be exclusive unless expressly indicated otherwise. All amounts denominated in dollars or "$" in this Agreement are references to United States dollars unless expressly indicated otherwise. The parties hereto acknowledge and agree that (a) each party and its counsel have reviewed and negotiated the terms and provisions of this Agreement and have contributed to its revision, (b) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Agreement and (c) the terms and provisions of this Agreement shall be construed fairly as to all parties hereto, regardless of which party was generally responsible for the preparation of this Agreement.
10.10 TIME OF THE ESSENCE
With regard to all dates and time periods set forth or referred to in this Agreement, the parties hereto agree that time is of the essence.
67
10.11 FURTHER ASSURANCES
Each party agrees (a) to furnish, upon the request of the other party, such further information, (b) to execute and deliver to the other party such other documents and (c) to use reasonable efforts to do such other acts and things, all as such other party may reasonably request for the purpose of carrying out the intent of this Agreement and the Contemplated Transactions; provided , however , that, except as expressly provided otherwise herein or in the other Transaction Documents, no party shall be required to make any additional representations or warranties or to incur any material expense or potential exposure to legal liability pursuant to this Section 10.11 .
10.12 PERFORMANCE BY AFFILIATES; BULK SALES LAWS
10.13 COUNTERPARTS
This Agreement 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]
68
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.
SELLER : |
|
PIONEER HI-BRED INTERNATIONAL, INC. |
|
By: |
/s/ Paul E. Schickler |
|
|
Name: |
Paul E. Schickler |
|
|
Title: |
President, Pioneer Hi-Bred International, Inc. |
|
BUYER : |
|
S&W SEED COMPANY |
|
By: |
/s/ Matthew K. Szot |
|
|
Name: |
Matthew K. Szot |
|
|
Title: |
CFO & EVP of Finance and Administration |
|
[Signature Page to Asset Purchase and Sale Agreement]