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 31, 2014
Date of Report (Date of earliest event reported)



S&W SEED COMPANY
(Exact Name of Company as Specified in Its Charter)

 
Nevada
001-34719
27-1275784
 (State or Other Jurisdiction of Incorporation)
 (Commission File Number)
(IRS Employer Identification Number)

25552 South Butte Avenue
Five Points, CA    93624

(Address of Principal Executive Offices Including Zip Code)

(559) 884-2535
(Company's Telephone Number, Including Area Code)


       Not Applicable       

(Former Name or Former Address, if Changed Since Last Report)

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.

Amendment to Purchase Agreement

First Amendment to the Asset Purchase and Sale Agreement

On December 31, 2014, S&W Seed Company, a Nevada corporation (the "Registrant"), and Pioneer Hi-Bred International, Inc., an Iowa corporation ("Pioneer"), entered into the First Amendment to the Asset Purchase and Sale Agreement (the "Amendment") in connection with that certain Asset Purchase and Sale Agreement, dated December 19, 2014 (the "Asset Purchase Agreement"). The Asset Purchase Agreement is described in the Registrant's Current Report on Form 8-K that was filed on December 29, 2014, which is incorporated herein by reference.

Under the Amendment, certain Schedules and Exhibits to the Asset Purchase Agreement were deleted and replaced by Schedules and Exhibits attached to the Amendment. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.

Operational Agreements

Alfalfa Distribution Agreement

In connection with the closing under the Asset Purchase Agreement, as amended by the Amendment, which occurred on December 31, 2014 (the "Closing"), on December 31, 2014, Registrant and Pioneer entered into the Alfalfa Distribution Agreement (the "Distribution Agreement") pursuant to which the Registrant will be the sole supplier, subject to certain exceptions, of certain alfalfa seed products for sale to customers by Pioneer. The Distribution Agreement shall remain in effect until September 30, 2024, unless terminated earlier as the result of a material breach or if a party becomes bankrupt or insolvent.

The Distribution Agreement provides for minimum annual purchase commitments from Pioneer (subject to certain exceptions) at specified price levels, with (subject to certain exceptions) a 4% cap on annual price increases. Based on these commitments and prices, the Registrant expects to generate approximately $26 million and $40 million in revenue under the Distribution Agreement (and other agreements with Pioneer) during the remainder of fiscal year 2015 (ending June 30, 2015) and in the fiscal year ending June 30, 2016, respectively.

Pioneer generally will make payments under the Distribution Agreement in three installments (in November, January and April) for delivery of seed by the Registrant during the seed sales year period (generally from December through May). However, in respect of the 2015 seed sales year, Pioneer will make only two payments (in January 2015 and April 2015). The Registrant received the first of these payments in the amount of approximately $22 million (representing 80% of the anticipated total purchase price for the 2015 seed sales year) on January 5, 2015.

The foregoing description of the Distribution Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Distribution Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

Contract Alfalfa Production Services Agreement

In connection with the Closing, on December 31, 2014, Registrant and Pioneer entered into the Contract Alfalfa Production Services Agreement (the "Production Services Agreement") pursuant to which the Registrant will perform for Pioneer certain services in connection with the production, conditioning, handling, and testing of certain GMO alfalfa varieties. The Production Services Agreement shall remain in effect until the earlier of (i) December 31, 2017 or (ii) the closing under the Second Asset Purchase Agreement (discussed below), unless terminated earlier in accordance with its terms.

The foregoing description of the Production Services Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Production Services Agreement, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.


Research Agreement

In connection with the Closing, on December 31, 2014, Registrant and Pioneer entered into the Research Agreement (the "Research Agreement") pursuant to which the Registrant will perform and provide assistance to Pioneer in connection with the evaluation, research and development of certain GMO alfalfa varieties. The Research Agreement shall remain in effect until the earlier of (i) December 31, 2017 or (ii) the closing under the Second Asset Purchase Agreement (discussed below), unless terminated earlier in accordance with its terms.

The foregoing description of the Research Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Research Agreement, a copy of which is attached hereto as Exhibit 10.3 and is incorporated herein by reference.

Non-Exclusive Alfalfa Licensing and Assignment Agreement

In connection with the Closing, the Registrant and Pioneer have executed and delivered the Non-Exclusive Alfalfa Licensing and Assignment Agreement, dated December 31, 2014 (the "Alfalfa Licensing Agreement"), pursuant to which the Registrant grants to Pioneer a royalty-free, limited non-exclusive license to plant, grow, breed and conduct research on the germplasm acquired by the Registrant from Pioneer for the purpose of introducing specified GMO traits. Any traited germplasm created under the agreement will be owned by Pioneer.

The foregoing description of the Alfalfa Licensing Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Alfalfa Licensing Agreement, a copy of which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.

Lease Agreement

In connection with the Closing, the Registrant and Pioneer entered into a Lease Agreement, dated December 31, 2014 (the "Lease Agreement"), pursuant to which Pioneer leased to the Registrant certain real property located in Franklin County, Washington, and related greenhouse, warehouse, equipment storage and other facilities related to the alfalfa business. The Lease Agreement expires on December 31, 2017, unless terminated earlier in accordance with its terms, and is not subject to renewal. During the term of the Lease, the Registrant will pay monthly rent in the amount of $9,333.

The foregoing description of the Lease Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Lease Agreement, a copy of which is attached hereto as Exhibit 10.5 and is incorporated herein by reference.

Information Technology Transition Services Agreement

In connection with the Closing, the Registrant and Pioneer entered into the Information Technology Transition Services Agreement, dated December 31, 2014 (the "IT Transition Agreement"). Under the terms of the IT Transition Agreement, Pioneer will provide to the Registrant transitional services related to certain information technology as described in the IT Transition Agreement.

The foregoing description of the IT Transition Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the IT Transition Agreement, a copy of which is attached hereto as Exhibit 10.6 and is incorporated herein by reference.

Promissory Note and Related Security Arrangements

Promissory Note

In connection with the Closing, the Registrant issued a Promissory Note, dated December 31, 2014 (the "Promissory Note") in favor of Pioneer. Under the terms of the Promissory Note, the Registrant agrees to pay $10,000,000 of the purchase price and up to $5,000,000 of the potential earn-out payment, each payable under the terms of the Asset Purchase Agreement, as amended by the Amendment.


The Promissory Note will mature on December 31, 2017. Interest on the Promissory Note shall accrue at a rate of three percent (3%) per annum and is payable annually on December 31. The Promissory Note is secured by the assets described in the Security Agreement, the Mortgage and the Deed of Trust, each as defined below in this Item 1.01.

The Promissory Note contains customary representations, warranties and covenants. Additionally, the Promissory Note grants to Pioneer customary rights following an event of default, including, without limitation, the right to accelerate the payment of unpaid principal and interest, foreclose any liens and security interests securing payment thereof, and a default interest rate.

The foregoing description of the Promissory Note does not purport to be complete and is qualified in its entirety by reference to the full text of the Promissory Note, a copy of which is attached hereto as Exhibit 10.7 and is incorporated herein by reference.

Security Agreement

In connection with the Closing, the Registrant and Pioneer entered into the Security Agreement, dated December 31, 2014 (the "Security Agreement"), pursuant to which the Registrant granted to Pioneer a security interest in certain of the assets acquired by the Registrant under the Asset Purchase Agreement, including certain real property, equipment and intellectual property. The Security Agreement contains customary representations, warranties and covenants. Additionally, the Security Agreement grants to Pioneer customary rights following an event of default with respect to the secured obligations.

The foregoing description of the Security Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Security Agreement, a copy of which is attached hereto as Exhibit 10.8 and is incorporated herein by reference.

Mortgage

In connection with the Closing, the Registrant granted to Pioneer a Mortgage, dated December 31, 2014 (the "Mortgage"), on real property, plant and fixtures located Columbia County, Wisconsin. The Mortgage secures the Registrant's obligations under the Promissory Note.

The foregoing description of the Mortgage does not purport to be complete and is qualified in its entirety by reference to the full text of the Mortgage, a copy of which is attached hereto as Exhibit 10.9 and is incorporated herein by reference.

Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing

In connection with the Closing, the Registrant, Pioneer (as beneficiary), and TitleOne Corporation, as trustee, entered into the Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated December 31, 2014 (the "Deed of Trust"). The Registrant granted the Deed of Trust on real property, plant and fixtures located in Nampa, Idaho for the purpose of securing the Registrant's obligations under the Promissory Note.

The foregoing description of the Deed of Trust does not purport to be complete and is qualified in its entirety by reference to the full text of the Deed of Trust, a copy of which is attached hereto as Exhibit 10.10 and is incorporated herein by reference.

Asset Transfer Documentation

Patent License Agreement

In connection with the Closing, the Registrant and Pioneer entered into the Patent License Agreement, dated December 31, 2014 (the "Patent License Agreement"). Under the terms of the Patent License Agreement, Pioneer granted to the Registrant and its affiliates, during the term of the license, a royalty-free, non-exclusive license, with respect to coating for alfalfa seeds that is produced or covered by certain patent rights owned by Pioneer or its affiliates, in the United States.

The foregoing description of the Patent License Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Patent License Agreement, a copy of which is attached hereto as Exhibit 10.11 and is incorporated herein by reference.


Patent Assignment Agreement

Pursuant to the terms of the Asset Purchase Agreement, at the Closing the Registrant and Pioneer executed and delivered the Patent Assignment Agreement, dated December 31, 2014 (the "Patent Assignment Agreement"), under which Pioneer transferred and assigned to the Registrant all of Pioneer's right, title and interest in and to certain patents. The foregoing description of the Patent Assignment Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Patent Assignment Agreement, a copy of which is attached hereto as Exhibit 10.12 and is incorporated herein by reference.

Know-How Transfer Agreement

Pursuant to the terms of the Asset Purchase Agreement, at Closing the Registrant and Pioneer executed and delivered the Know-How Transfer Agreement, dated December 31, 2014 (the "Know-How Transfer Agreement"), under which Pioneer transferred and assigned to the Registrant all of Pioneer's right, title and interest in and to certain know-how related to the operation of certain transferred equipment at the transferred plant sites, including, but not limited to, standard operating procedures for such equipment, engineering drawings and blue print files with respect to the transferred plant sites (subject to certain exceptions). The foregoing description of the Know-How Transfer Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Know-How Transfer Agreement, a copy of which is attached hereto as Exhibit 10.13 and is incorporated herein by reference.

Data Transfer Agreement

Pursuant to the terms of the Asset Purchase Agreement, at Closing the Registrant and Pioneer executed and delivered the Data Transfer Agreement, dated December 31, 2014 (the "Data Transfer Agreement"), under which the parties established the standards of conduct related to the transfer of personal information by Pioneer and the use of such personal information by the Registrant and its affiliates. The foregoing description of the Data Transfer Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Data Transfer Agreement, a copy of which is attached hereto as Exhibit 10.14 and is incorporated herein by reference.

Assignment Agreement of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights and Registration Rights

Pursuant to the terms of the Asset Purchase Agreement, at Closing the Registrant and Pioneer executed and delivered the Assignment Agreement of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights and Registration Rights, dated December 31, 2014 (the "Assignment of Rights"), pursuant to which Pioneer transferred and assigned all of Pioneer's right, title and interest in and to certain plant variety certificates and plant breeders' rights. The foregoing description of the Assignment of Rights does not purport to be complete and is qualified in its entirety by reference to the full text of the Assignment of Rights, a copy of which is attached hereto as Exhibit 10.15 and is incorporated herein by reference.

Assignment and Assumption Agreement

Pursuant to the terms of the Asset Purchase Agreement, at Closing the Registrant and Pioneer executed and delivered the Assignment and Assumption Agreement, dated December 31, 2014 (the "Assignment and Assumption Agreement"), pursuant to which Pioneer transferred and assigned to the Registrant all of Pioneer's right, title and interest in and to the assets purchased under the Asset Purchase Agreement (other than those purchased assets that were transferred and assigned pursuant to any other agreement described in this Item 1.01). The foregoing description of the Assignment and Assumption Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Assignment and Assumption Agreement, a copy of which is attached hereto as Exhibit 10.16 and is incorporated herein by reference.

General Warranty Deed (Idaho)

Pursuant to the terms of the Asset Purchase Agreement, at Closing Pioneer executed and delivered to the Registrant a General Warranty Deed, dated December 31, 2014 (the "General Warranty Deed (Idaho)"), pursuant to which Pioneer transferred and assigned to the Registrant all of Pioneer's right, title and interest in and to certain real property located in Canyon County, Idaho. The foregoing description of the General Warranty Deed (Idaho) does not purport to be complete and is qualified in its entirety by reference to the full text of the General Warranty Deed (Idaho), a copy of which is attached hereto as Exhibit 10.17 and is incorporated herein by reference.


Warranty Deed (Wisconsin)

Pursuant to the terms of the Asset Purchase Agreement, at Closing Pioneer executed and delivered to the Registrant a Warranty Deed, dated December 31, 2014 (the "Warranty Deed (Wisconsin)"), pursuant to which Pioneer transferred and assigned to the Registrant all of Pioneer's right, title and interest in and to certain real property located in Columbia County, Wisconsin. The foregoing description of the Warranty Deed (Wisconsin) does not purport to be complete and is qualified in its entirety by reference to the full text of the Warranty Deed (Wisconsin), a copy of which is attached hereto as Exhibit 10.18 and is incorporated herein by reference.

Second Purchase Agreement

Second Asset Purchase and Sale Agreement

Pursuant to the terms of the Asset Purchase Agreement, if required third party consents are received prior to November 30, 2017 and subject to the satisfaction of certain other conditions specified in the Asset Purchase Agreement, either the Registrant or Pioneer has the right to enter into (and require the other party to enter into) on December 29, 2017 (or such earlier date as the parties agree) a proposed form of asset purchase and sale agreement attached to the Asset Purchase Agreement (the "Second Asset Purchase Agreement"), as the same may be updated in accordance with the terms of the Asset Purchase Agreement, pursuant to which Registrant would acquire additional GMO germplasm varieties and other related assets from Pioneer for a purchase price of $7,000,000. The Second Asset Purchase Agreement contains customary representations, warranties and covenants. The foregoing description of the Second Asset Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Second Asset Purchase Agreement, the form of which is attached hereto as Exhibit 10.19 and is incorporated herein by reference.

Item 2.01    Completion of Acquisition or Disposition of Assets.

The Closing under the Asset Purchase Agreement occurred on December 31, 2014. The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.

Item 2.03    Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 of this Current Report on Form 8-K with respect to the Promissory Note is incorporated by reference into this Item 2.03.

Additionally, on December 31, 2014 the Registrant closed each of the financing transactions described in the Registrant's Current Report on Form 8-K that was filed on December 31, 2014, which is incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or By-laws; Change in Fiscal Year.

On January 6, 2015, the board of directors of the Registrant approved the Second Amendment to Amended and Restated Bylaws of the Registrant. Under the approved amendment, Sections 78.378 - 78.3793 of the Nevada Revised Statutes, which relate to the acquisition of a controlling interest in a Nevada corporation, will not apply to the shares of common stock of the Registrant issued or issuable to MFP Partners, L.P. upon conversion of convertible debentures or exercise of common stock purchase warrants described in the Registrant's Current Report on Form 8-K that was filed on December 31, 2014.

The foregoing description of the Second Amendment to Amended and Restated Bylaws of the Registrant does not purport to be complete and is qualified in its entirety by reference to the full text of the Second Amendment to Amended and Restated Bylaws of the Registrant, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

Item 8.01    Other Events

On December 31, 2014, the Registrant issued a press release announcing its entry into definitive agreements for the financing needed to complete the purchase of the Pioneer assets pursuant to the Asset Purchase and Sale Agreement. A copy of the press release is filed as Exhibit 99.1 hereto.

On December 31, 2014, the Registrant issued a press release announcing the closing of the purchase of the Pioneer assets pursuant to the Asset Purchase and Sale Agreement. A copy of the press release is filed as Exhibit 99.2 hereto.


On January 5, 2015, the Registrant issued a press release announcing a conference call scheduled for January 8, 2015 at 4:30 p.m. (Eastern time) to discuss the purchase of the Pioneer assets pursuant to the Asset Purchase and Sale Agreement. A copy of the press release is filed as Exhibit 99.3 hereto.

On January 6, 2015, the Registrant issued a press release announcing the appointment of Robin Newell as Vice President of North American Sales. A copy of the press release is filed as Exhibit 99.4 hereto.

On January 6, 2015, the Registrant issued a press release announcing the appointment of Kirk Rolfs as Vice President of Production. A copy of the press release is filed as Exhibit 99.5 hereto.

Item 9.01    Financial Statements and Exhibits.

(a) Financial Statements of Businesses Acquired

To be provided when available by amendment to this Report.

(b) Pro Forma Financial Information

To be provided when available by amendment to this Report.

(d) Exhibits

Exhibit   Description
     
2.1   First Amendment to the Asset Purchase and Sale Agreement, dated December 31, 2014, between S&W Seed Company and Pioneer Hi-Bred International, Inc.* ##
     
3.1   Second Amendment to Amended and Restated Bylaws of S&W Seed Company, effective January 6, 2015
     
10.1   Alfalfa Distribution Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.2   Contract Alfalfa Production Services Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.3   Research Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.4   Non-Exclusive Alfalfa Licensing and Assignment Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. in favor of S&W Seed Company*
     
10.5   Lease Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.6   Information Technology Transition Services Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.7   Promissory Note, dated December 31, 2014, issued by S&W Seed Company in favor of Pioneer Hi-Bred International, Inc.*
     
10.8   Security Agreement, dated December 31, 2014, between S&W Seed Company and Pioneer Hi-Bred International, Inc.
     
10.9   Mortgage, dated December 31, 2014, from S&W Seed Company to Pioneer Hi-Bred International, Inc.
     
10.10   Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated December 31, 2014, among S&W Seed Company, TitleOne Corporation, as trustee, and Pioneer Hi-Bred International, Inc., as beneficiary
     
10.11   Patent License Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company
     
10.12   Patent Assignment Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.13   Know-How Transfer Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.14   Data Transfer Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.15   Assignment Agreement of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights and Registration Rights, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.16   Assignment and Assumption Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company
     
10.17   General Warranty Deed, dated December 31, 2014, by Pioneer Hi-Bred International, Inc. in favor of S&W Seed Company
     
10.18   Warranty Deed, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. in favor of S&W Seed Company
     
10.19   Form of Asset Purchase and Sale Agreement between S&W Seed Company (or its designated affiliate) and Pioneer Hi-Bred International, Inc. (or its designated affiliate)* ##
     
99.1   Press Release, dated December 31, 2014, related to the signing of definitive agreements for the financing of the Pioneer asset purchase
     
99.2   Press Release, dated December 31, 2014, related to the closing of the Pioneer asset purchase
     
99.3   Press Release, dated January 5, 2015, related to the scheduling of a conference call to discuss the Pioneer asset purchase
     
99.4   Press Release, dated January 6, 2015, related to the appointment of Robin Newell as Vice President of North American Sales
     
99.5   Press Release, dated January 6, 2015, related to the appointment of Kirk Rolfs as Vice President of Production

_______________________

* Portions of this Exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.

## Exhibits and schedules to this agreement have been omitted pursuant to Item 601(b) of Regulation S-K. The Registrant hereby undertakes to furnish supplementally a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.


SIGNATURES

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: January 7, 2015

 

 


EXHIBIT INDEX

Exhibit   Description
     
2.1   First Amendment to the Asset Purchase and Sale Agreement, dated December 31, 2014, between S&W Seed Company and Pioneer Hi-Bred International, Inc.* ##
     
3.1   Second Amendment to Amended and Restated Bylaws of S&W Seed Company, effective January 6, 2015
     
10.1   Alfalfa Distribution Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.2   Contract Alfalfa Production Services Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.3   Research Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.4   Non-Exclusive Alfalfa Licensing and Assignment Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. in favor of S&W Seed Company*
     
10.5   Lease Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.6   Information Technology Transition Services Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company* ##
     
10.7   Promissory Note, dated December 31, 2014, issued by S&W Seed Company in favor of Pioneer Hi-Bred International, Inc.*
     
10.8   Security Agreement, dated December 31, 2014, between S&W Seed Company and Pioneer Hi-Bred International, Inc.
     
10.9   Mortgage, dated December 31, 2014, from S&W Seed Company to Pioneer Hi-Bred International, Inc.
     
10.10   Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated December 31, 2014, among S&W Seed Company, TitleOne Corporation, as trustee, and Pioneer Hi-Bred International, Inc., as beneficiary
     
10.11   Patent License Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company
     
10.12   Patent Assignment Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.13   Know-How Transfer Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.14   Data Transfer Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.15   Assignment Agreement of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights and Registration Rights, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company ##
     
10.16   Assignment and Assumption Agreement, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. and S&W Seed Company
     
10.17   General Warranty Deed, dated December 31, 2014, by Pioneer Hi-Bred International, Inc. in favor of S&W Seed Company
     
10.18   Warranty Deed, dated December 31, 2014, between Pioneer Hi-Bred International, Inc. in favor of S&W Seed Company
     
10.19   Form of Asset Purchase and Sale Agreement between S&W Seed Company (or its designated affiliate) and Pioneer Hi-Bred International, Inc. (or its designated affiliate)* ##
     
99.1   Press Release, dated December 31, 2014, related to the signing of definitive agreements for the financing of the Pioneer asset purchase
     
99.2   Press Release, dated December 31, 2014, related to the closing of the Pioneer asset purchase
     
99.3   Press Release, dated January 5, 2015, related to the scheduling of a conference call to discuss the Pioneer asset purchase
     
99.4   Press Release, dated January 6, 2015, related to the appointment of Robin Newell as Vice President of North American Sales
     
99.5   Press Release, dated January 6, 2015, related to the appointment of Kirk Rolfs as Vice President of Production

_______________________

* Portions of this Exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.

## Exhibits and schedules to this agreement have been omitted pursuant to Item 601(b) of Regulation S-K. The Registrant hereby undertakes to furnish supplementally a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.

EXHIBIT 2.1

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL

FIRST AMENDMENT TO THE ASSET PURCHASE AND SALE AGREEMENT

This First Amendment to the Asset Purchase and Sale Agreement (this "Amendment" ) is made this 31 st 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" ). Buyer and Seller are collectively referred to herein as the "Parties" and each individually as a "Party" .

WHEREAS, the Parties entered into that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the "APSA" ).

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

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

  1. As used in this Amendment, capitalized terms not defined herein shall have the meanings ascribed to them in the APSA.
  2. All references to "[**] 1 " in Article 1 of the APSA and in Section 5.19 of the APSA shall be deemed to refer to "[**] 2 ."
  3. Section 5.8(a) of the APSA shall be amended by deleting the text therein in its entirety and inserting the following in lieu thereof:
    1. On the Closing Date, Seller shall, or shall cause its Affiliates to, send to Buyer a hard copy or an electronic copy of the documents comprising the Transferred Contracts, and, to the extent not otherwise located at either Transferred Plant Site or the premises that are the subject of the Ground Lease, the Transferred Records, provided , that, on the Closing Date or the next succeeding Business Day, Seller may provide some or all of the such documents via other electronic means, including by providing a link to a server or FTP site containing such documents, which documents shall be available for download for a period of not less than thirty (30) days following the Closing, or by delivering such documents to an internet drop-box provided by Buyer.

  4. Schedule 4.1(d) of the APSA shall be deleted in its entirety and the form of Schedule 4.1(d) of the APSA set forth on Attachment I to this Amendment shall be inserted in lieu thereof.
  5. Exhibit 1(D) of the APSA shall be deleted in its entirety and the form of Exhibit 1(D) of the APSA set forth on Attachment II to this Amendment shall be inserted in lieu thereof.

_____________________
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.


  1. Exhibit 1(K) of the APSA shall be deleted in its entirety and the form of Exhibit 1(K) of the APSA set forth on Attachment III to this Amendment shall be inserted in lieu thereof. [ NTD: Exhibit 1(K) to contain Patent Assignment with a revised list of Patents]
  2. Exhibit 1(N) of the APSA shall be deleted in its entirety and the form of Exhibit 1(N) of the APSA set forth on Attachment IV to this Amendment shall be inserted in lieu thereof.
  3. Exhibit 1(P) of the APSA shall be deleted in its entirety and the form of Exhibit 1(P) of the APSA set forth on Attachment V to this Amendment shall be inserted in lieu thereof.
  4. Exhibit 1(R) of the APSA shall be deleted in its entirety and the form of Exhibit 1(R) of the APSA set forth on Attachment VI to this Amendment shall be inserted in lieu thereof.
  5. Exhibit 1(T) of the APSA shall be deleted in its entirety and the form of Exhibit 1(T) of the APSA set forth on Attachment VII to this Amendment shall be inserted in lieu thereof.
  6. Exhibit 2.1(a)(v) of the APSA of the APSA shall be deleted in its entirety and the form of Exhibit 2.1(a)(v) of the APSA set forth on Attachment VIII to this Amendment shall be inserted in lieu thereof.
  7. Exhibit 2.1(a)(vii) of the APSA shall be deleted in its entirety and the form of Exhibit 2.1(a)(vii) of the APSA set forth on Attachment IX to this Amendment shall be inserted in lieu thereof.
  8. Exhibit 2.1(b)(ii) of the APSA shall be deleted in its entirety and the form of Exhibit 2.1(b)(ii) of the APSA set forth on Attachment X to this Amendment shall be inserted in lieu thereof.
  9. Exhibit 6.2 of the APSA shall be deleted in its entirety and the form of Exhibit 6.2 of the APSA set forth on Attachment XI to this Amendment shall be inserted in lieu thereof.
  10. Exhibit 7.2 of the APSA shall be deleted in its entirety and the form of Exhibit 7.2 of the APSA set forth on Attachment XII to this Amendment shall be inserted in lieu thereof.
  11. This Amendment shall be effective as of the date first written above.
  12. In case of any inconsistencies between the terms and conditions contained in this Amendment and the terms and conditions contained in the APSA, the terms and conditions of this Amendment shall control.

2


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

[Signature Page Follows]

3


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

 

SELLER :

 

PIONEER HI-BRED INTERNATIONAL, INC.

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

BUYER :

 

S&W SEED COMPANY

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

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

EXHIBIT 3.1

SECOND AMENDMENT

TO

AMENDED AND RESTATED BYLAWS

OF

S&W SEED COMPANY

10.13 Application of NRS 78.378-78.3793 . The provisions of NRS 78.378-78.3793 shall not apply to the shares of Common Stock issued or issuable upon conversion of convertible debentures or exercise of common stock purchase warrants to MFP Partners, L.P. in connection with investment transactions that closed on December 31, 2014.

EXHIBIT 10.1

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

ALFALFA DISTRIBUTION AGREEMENT

This Alfalfa Distribution Agreement (the "Agreement" ) is entered into as of this 31st day of December, 2014 (hereinafter referred to as the "Effective Date" ), by and between Pioneer Hi-Bred International, Inc., a company organized and existing under the laws of the State of Iowa, with its principal place of business at 7100 N.W. 62 nd Ave, Johnston, Iowa 50131, (hereinafter referred to as "Pioneer" ), and S&W Seed Company, a company organized and existing under the laws of the State of Nevada, with its principal place of business at 25552 South Butte Avenue, Five Points, California 93624, (hereinafter referred to as "Company" ).

RECITALS:

WHEREAS, Pioneer and Company are parties to that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the "APSA" ), pursuant to which Company and/or its Affiliates purchased or licensed from Pioneer and/or its Affiliates, and Pioneer and/or its Affiliates sold or licensed to Company and/or its Affiliates, certain assets associated with the development of specified commercial alfalfa seed, as provided therein;

WHEREAS, subject to the terms and conditions of the APSA, Pioneer and Company may enter into that certain Asset Purchase and Sale Agreement following the Closing Date (the "Second APSA" ), pursuant to which Company and/or its Affiliates may purchase from Pioneer and/or its Affiliates, and Pioneer and/or its Affiliates may sell to Company and/or its Affiliates, certain assets associated with the development of specified commercial alfalfa seed, as provided therein;

WHEREAS, Pioneer and Company have agreed that for technical, commercial and other reasons it may be advisable and/or necessary that Company engage Pioneer, on an exclusive basis, as a distributor of Company and its Affiliates in connection with the marketing, promotion, distribution and sale of certain alfalfa products under the Pioneer brand name within the Territory, upon and subject to the terms contained in this Agreement; and

WHEREAS, Pioneer wishes to act as the exclusive distributor of Company and its Affiliates in connection with the marketing, promotion, distribution and sale of certain alfalfa products under the Pioneer brand name within the Territory, upon and subject to the terms contained in this Agreement.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:

1. Definitions

1.1.   "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.

1.2.   "Dealer" means any person, entity or organization designated by Pioneer to market, promote, distribute or sell Pioneer Products solely within the Territory.

1.3.   "Commercialization Selection List" means, for each applicable Sales Year, a list prepared by Company setting forth Experimental Varieties selected by Pioneer in accordance with the terms of this Agreement. The initial Commercialization Selection List shall comprise the Initial Experimental Varieties (hereinafter, the " Initial Commercialization Selection List" ).


1.4.   "Company Rights" means patents and patent applications, and other proprietary rights, including but not limited to, parental lines, in-bred lines, plant materials, germplasm, and any progeny or derivatives from any of them, plant variety rights, plant breeder rights, trade-secrets, formulae, methods, processes, techniques, information, and know-how, owned or under license by Company, or any of its Affiliates.

1.5.   "Experimental Variety" means all varieties of alfalfa seed in which Company or its Affiliates has proprietary rights and/or the right to license such rights to Pioneer on the terms and conditions set forth herein, that Pioneer selected, in the relevant year, from the Testing Year Selection List or pursuant to Section 2.2.3.4 or Section 2.2.4.6. The initial Experimental Varieties shall be as set forth on Schedule 1.5 attached hereto (the "Initial Experimental Varieties" ).

1.6.   "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.

1.7.   "Pioneer Products" shall mean commercial alfalfa seed products offered exclusively for sale by Company or its Affiliates to Pioneer from time to time, in accordance with the terms of this Agreement, and intended for sales to customers or to Dealers solely within the Territory. The Pioneer Products shall be identified on Schedule 1.7 attached hereto, as such Schedule may be further amended from time to time by Pioneer and Company or to reflect the products with respect to which Pioneer shall obtain rights to (or lose rights to) in accordance with the terms of this Agreement. For the avoidance of doubt, non-dormant varieties of Pioneer Products shall include only those varieties of alfalfa seed products that are derived from germplasm included as a Purchased Asset under the APSA or the Second APSA, as applicable, including any germplasm that is the subject of any Transferred Contract (as such term is defined in either the APSA or the Second APSA, as applicable).

1.8.   "Production Agreement" means the Contract Alfalfa Production Services Agreement by and between Pioneer and Company dated of even date herewith.

1.9.   "Research Agreement" means the Research Agreement by and between Pioneer and Company dated of even date herewith.

1.10.   "SY-1" means the twelve month period beginning on January 1 and ending on December 31 of the calendar year immediately prior to the Sales Year. By way of example, in Sales Year 2019, SY-1 shall be calendar year 2018.

1.11.   "SY-2" means the twelve month period beginning on January 1 and ending on December 31 of the calendar year that is two calendar years immediately preceding the Sales Year. By way of example, in Sales Year 2019, SY-2 shall be calendar year 2017.

1.12.   "SY-3" means the twelve month period beginning on January 1 and ending on December 31 of the calendar year that is three calendar years immediately preceding the Sales Year. By way of example, in Sales Year 2019, SY-3 shall be calendar year 2016.

1.13.   "SY-4" means the twelve month period beginning on January 1 and ending on December 31 of the calendar year that is four calendar years immediately preceding the Sales Year. By way of example, in Sales Year 2019, SY-4 shall be calendar year 2015.

1.14.   "Sales Year" means the twelve-month period beginning on January 1 of a year and ending on December 31 of such year.

1.15.   "Technical Information" means any technical knowledge, know-how or other information in any form, including but not limited to, oral, written, graphic, demonstrative or sample form which in any way relates or pertains to varieties or Experimental Varieties, including information about pedigrees,

- 2 -


combining ability, agronomic performance, disease characteristics, production characteristics, phenotypic information or molecular characteristics.

1.16.   "Territory" means the United States, Canada, Mexico, Italy, Spain, Germany, Romania, Bulgaria, Slovenia, Russia, Ukraine, Egypt, Saudi Arabia, Morocco, New Zealand, China, India, Pakistan, France, Greece and such other countries and territories as the parties shall mutually agree upon in writing.

1.17.   "Testing Year Selection List" means a list, prepared annually by Company, setting forth all of Company's or its Affiliate's varieties of alfalfa seed developed by Company or its Affiliates derived from germplasm included as a Purchased Asset under the APSA or the Second APSA, as applicable, (including any germplasm that is the subject of any Transferred Contract, as such term is defined in the APSA or the Second APSA, as applicable) by pedigree or to which Company or its Affiliates has obtained proprietary and/or distribution rights (other than, in the case of non-dormant alfalfa seed, proprietary germplasm of the Company or its Affiliates). The Testing Year Selection List for Sales Year 2018 shall include varieties of alfalfa seed developed by Company or its Affiliates derived from germplasm included as a Purchased Asset under the APSA or the Second APSA, as applicable, (including any germplasm that is the subject of any Transferred Contract, as such term is defined in the APSA or the Second APSA, as applicable) by pedigree or to which Company or its Affiliates has obtained proprietary and/or distribution rights on or after the Effective Date and on or prior to December 31, 2014 (other than, in the case of non-dormant alfalfa seed, proprietary germplasm of the Company or its Affiliates).

1.18.   "Trademarks" means the trademarks owned by Pioneer, including the brand name PIONEER and the trapezoid symbol and such other trademarks as Pioneer has either adopted or registered for, and including the marks detailed in Appendix B .

2. Planning, Production and Distribution of Pioneer Products

2.1.   Distribution

2.1.1.   Subject to the terms and conditions set forth in this Agreement, (i) Company hereby appoints, and causes its Affiliates to appoint, Pioneer and its Affiliates as Company's and its Affiliates' exclusive distributor (to the extent expressly set forth herein) for the marketing, promotion, distribution and sale of the Pioneer Products offered for sale in the Territory during the term of this Agreement, (ii) Pioneer and its Affiliates hereby accept such appointment and (iii) in connection therewith, Company hereby grants to Pioneer and its Affiliates under the Company Rights (and shall cause its Affiliates to grant under the applicable Company Rights) an exclusive right (to the extent expressly set forth herein) to market, promote, distribute and sell Pioneer Products in the Territory, including with said grant, the right to use and exercise the Company Rights solely as necessary to market, promote distribute and sell Pioneer Products in the Territory and in accordance with the terms of this Agreement or otherwise to perform its obligations pursuant to the terms of this Agreement.

2.1.2.   Except as set forth in this Section 2.1.2, during the term of this Agreement, Pioneer agrees that Company or its Affiliates shall be the sole source of alfalfa seed products for sale to customers (including, without limitation, Dealers) by Pioneer.

2.1.2.1.   In any Sales Year in which Company or its Affiliates shall fail to timely deliver the entire amount of Pioneer Products (meeting the quality specifications set forth in Appendix A) set forth in the Initial Demand Plan for such Sales Year or, if provided to Company for such Sales Year, the Revised Demand Plan (the amount of such failure to deliver being referred to as a "Shortfall" ), Company shall, and shall cause its Affiliates to, use its commercially reasonable efforts to seek alternative sources of equivalent alfalfa seed products (meeting the quality specifications set forth in Appendix A) for sale and delivery to Pioneer in the amount of the Shortfall ( "Alternative Supply" ). If Company has not secured and

- 3 -


delivered to Pioneer the entirety of the Alternative Supply on or prior to January 1 of the applicable Sales Year, then Pioneer (and its Affiliates) shall be entitled to seek alternative sources for (and to market, promote, distribute and sell in the Territory) alfalfa seed products in the then current Sales Year in an amount equal to the remaining Shortfall of the applicable Pioneer Products, provided that Pioneer has first purchased the entire amount of the applicable Pioneer Products that meet the quality specifications set forth in Appendix A that are made available by Company and its Affiliates pursuant to the terms of this Agreement.

2.1.2.2.   If any third party shall offer for license a new transgenic and/or native trait for dormant alfalfa seed that offers a superior value pricing opportunity compared to varieties offered by Company (each, a "New Product" ), and Pioneer or its Affiliates desire to purchase such New Product for sale to customers (whether or not through its Dealers), Pioneer shall notify Company thereof in writing. Company shall have one year to inform Pioneer in writing (the "Election Notice" ) that (i) Company or its Affiliates have proprietary and/or distribution rights to offer the New Product, and (ii) Company or its Affiliates will agree to sell to Pioneer or its Affiliates their respective requirements for the New Product, on substantially the same terms offered by such third party. If Company shall fail to deliver the Election Notice, or shall fail to satisfy Pioneer's or its Affiliates' requirements for the New Product on substantially the same terms offered by such third party, Pioneer (and its Affiliates) shall be entitled to purchase and sell the New Product from such third party during the term of this Agreement until such time as Company or its Affiliates offer and deliver the New Product on substantially the same terms, and Pioneer's or its Affiliates marketing, promotion, distribution or sale of the New Product shall not constitute a breach of this Section 2.1.2.

2.1.2.3.   Company will, and will cause its Affiliates to, use commercially reasonable efforts to develop dormant alfalfa seed products which meet or exceed market standards in terms of pest resistance, forage yield, forage quality and other agronomic traits (as determined by mutual agreement of the parties). For purposes of this Section 2.1.2.3, satisfaction of Company's and its Affiliates obligation to use commercially reasonable efforts shall require commercial expenditures on research and development in an aggregate amount equal to or exceeding U.S. $1,500,000 (or such lower amount as Company can demonstrate is reasonably likely to enable it achieve the standard set forth in the first sentence of this Section). Commencing in 2016 and continuing for the term of this Agreement, Company shall deliver to Pioneer such information as shall be reasonably requested by Pioneer to confirm Company's compliance with this Section 2.1.2.3. No breach of this Section 2.1.2.3 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1. In the event of any breach of this Section 2.1.2.3, then Pioneer (and its Affiliates) shall be entitled to seek alternative sources for (and to market, promote, distribute and sell in the Territory) alfalfa seed products commencing in the second Sales Year immediately following the Sales Year in which such breach shall have occurred and continuing for the term of this Agreement, whereupon Company's obligations under this Section 2.1.2.3 shall be deemed to be of no further force or effect.

2.1.2.4.   Without limitation to any of the foregoing, but subject in all respects to the terms and conditions of the Production Agreement, (a) unless and until the parties shall have consummated the transactions contemplated by the Second APSA, Pioneer (and its Affiliates) shall be entitled to purchase from third parties (and market, promote, distribute and sell in the Territory) alfalfa seed varieties containing [**] 1 and/or varieties derived from a [**] 2 germplasm and (b) Pioneer (and its Affiliates) shall be entitled to purchase Purchased Units (as such term is defined

_________________________
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.

- 4 -


Production Agreement) from third parties (and market, promote, distribute and sell in the Territory) the Purchased Units.

2.1.3.   During the term of this Agreement, Company shall not, and shall cause its Affiliates not to, directly or indirectly, market, promote, distribute, sell or otherwise transfer, in anyway, Pioneer Products in the Territory other than in accordance with the terms of this Agreement; provided that, for clarity, nothing in this Agreement (a) restricts the Company from any activity permitted under Section 2.3.4, (b) limits in any way Company's or any of its Affiliates' rights to, directly or indirectly, solicit business, market, promote, distribute, sell or otherwise transfer, Pioneer Products outside the Territory or (c) limits in any way Company's or any of its Affiliates' rights to, directly or indirectly, solicit business, market, promote, distribute, sell or otherwise transfer, products other than Pioneer Products whether within or outside the Territory.

2.1.4.   Except as expressly set forth in this Section 2.1, and except with respect to those varieties of alfalfa seed with respect to which Pioneer shall possess and retain rights or otherwise have contractual obligations to third parties, in each case, as of the Closing under the APSA, Pioneer will not market, promote, distribute, sell or in any other way deal in alfalfa seed or related products (including, without limitation, retail sales to customers or wholesale distribution of alfalfa seed other than Pioneer Products), whether within or outside of the Territory.

2.1.5.   The Parties acknowledge and agree that the marketing, promotion, distribution and sale of Pioneer Products pursuant to the terms of this Agreement may be done by or on behalf of Pioneer, its Affiliates or their respective Dealers, appointed at the sole discretion of Pioneer; provided, however, that nothing herein shall in any way limit any of Pioneer's or its Affiliates' Dealers' rights to market, promote, distribute sell or in any other way deal in any products (including, without limitation, any alfalfa seed products), whether within or outside of the Territory.

2.1.6.   In the event that any third party shall offer for license a germplasm for dormant alfalfa containing new transgenic and/or native traits, Company will use its commercially reasonable efforts to in-license such germplasm for purposes of this Agreement and shall make such products available for selection as Pioneer Products. No breach of this Section 2.1.6 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1.

2.2.   Future Pioneer Products Selection Process

2.2.1.   For Sales Year 2015, the Pioneer Products available exclusively to Pioneer for sale shall be the products identified on Schedule 1.7 as 2015 Pioneer Products.

2.2.2.   For Sales Year 2016, the Pioneer Products available exclusively to Pioneer for sale shall be the products identified on Schedule 1.7 as 2015 Pioneer Products and 2016 Pioneer Products.

2.2.3.   For Sales Year 2017, the following Provisions shall apply:

2.2.3.1.   The Initial Commercialization Selection List is set forth on Schedule 2.2.3.1 .

2.2.3.2.   On or before January 31 of SY-2 year (in this case January 31, 2015), Pioneer shall be entitled to make two (2) selections from such Initial Commercialization Selection List by delivering written notice thereof to Company. In addition, Pioneer shall be entitled to one additional selection from such Initial Commercialization Selection List for every [**] 3 units (or fraction thereof) of

_________________________
3 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 5 -


Pioneer Products sold during the Sales Year ending immediately prior to the selection date (in this case, Sales Year 2016), which selections shall be included in the written notice described in the immediately preceding sentence. Pioneer shall have the exclusive rights to market, promote, distribute and sell any of the products selected in accordance with this Section 2.2.3.2.

2.2.3.3.   Upon the delivery of the written notice described in Section 2.2.3.2 above, the Parties agree that, subject to Section 2.2.6, such selections of the Initial Experimental Varieties shall automatically be included in Schedule 1.7 .

2.2.3.4.   Company, in its sole discretion, may offer to Pioneer additional varieties of alfalfa seed to select as Experimental Varieties for Pioneer's consideration. With respect to such additional varieties of alfalfa seed that are ultimately selected by Pioneer, the Parties agree that such selections shall automatically be included in Schedule 1.7 .

2.2.4.   For Sales Year 2018 (and continuing thereafter during the term of this Agreement), the following provisions shall apply:

2.2.4.1.   Company shall prepare a new Testing Year Selection List on or before December 31 of each SY-4 and shall promptly send it, together with all applicable Technical Information relating to the varieties of alfalfa seed derived from germplasm included as a Purchased Asset under the APSA or the Second APSA, as applicable, (including any germplasm that is the subject of any Transferred Contract, as such term is defined in the APSA or the Second APSA, as applicable) by pedigree by Company or its Affiliates or to which Company or its Affiliates has obtained proprietary and/or distribution rights on the Testing Year Selection List (other than, in the case of non-dormant alfalfa seed, proprietary germplasm of Company or its Affiliates), to Pioneer.

2.2.4.2.   On or before January 31 of each SY-3, Pioneer shall be entitled to make four (4) selections from such Testing Year Selection List by delivering written notice thereof to Company. In addition, Pioneer shall be entitled to one additional selection from such Testing Year Selection List for every [**] 4 units (or fraction thereof) of Pioneer Products sold during the Sales Year ending immediately prior to the selection date, which selections shall be included in the written notice described in the immediately preceding sentence. Such Pioneer selection rights shall be from the entire list of all alfalfa seed varieties offered by Company or its Affiliates and shall be ahead of any other selection process by Company or its Affiliates, either for itself or for any other licensee or distributor of Company or its Affiliates, or otherwise made available to any other Person. Any of the products selected by Pioneer in accordance with this Section 2.2.4.2 will be treated hereunder as Pioneer Products; provided, however, that if such selected variety is not again selected in SY-2 (or in any subsequent year) from the Commercialization Selection Year List, then such alfalfa seed variety shall no longer be treated as a Pioneer Product and shall be free to be used by Company or its Affiliates as Company may determine, but subject in all events to the terms of this Agreement.

2.2.4.3.   On or before December 1 of each SY-3, Company shall prepare a new Commercialization Selection List and shall promptly send it, together with all applicable Technical Information relating to the Experimental Varieties on the Commercialization Selection List, to Pioneer.

_________________________
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 6 -


2.2.4.4.   On or before January 31 of each SY-2 year, Pioneer shall be entitled to make two (2) selections from such Commercialization Selection List by delivering written notice thereof to Company. In addition, Pioneer shall be entitled to one additional selection from such Commercialization Selection List for every [**] 5 units (or fraction thereof) of Pioneer Products sold during the Sales Year ending immediately prior to the selection date, which selections shall be included in the written notice described in the immediately preceding sentence. Any of the products selected by Pioneer in accordance with this Section 2.2.4.4 will be treated hereunder as Pioneer Products.

2.2.4.5.   Upon the delivery of the written notice(s) described in Sections 2.2.4.2 and 2.2.4.4 above, the Parties agree that such selections of the applicable alfalfa seed varieties shall automatically be included in Schedule 1.7 .

2.2.4.6.   Company, in its sole discretion, may offer to Pioneer additional varieties of alfalfa seed to select as Experimental Varieties for Pioneer's consideration. With respect to such additional varieties of alfalfa seed that are ultimately selected by Pioneer, the Parties agree that such selections shall automatically be included in Schedule 1.7 .

2.2.5.   Within ten (10) days following the date upon which any selections of alfalfa seed varieties shall be deemed to have been automatically included in Schedule 1.7 , Company shall deliver to Pioneer an updated Schedule 1.7 reflecting such additions.

2.2.6.   If, in Sales Year 2017 (or in any subsequent Sales Year), Pioneer and its Affiliates do not commit to purchase at least 800 units of any Pioneer Product, the applicable variety will no longer be deemed a Pioneer Product and will be automatically removed from Schedule 1.7 .

2.3.   Production, Orders and Sales

2.3.1.   Reserved.

2.3.2.   For sales in Sales Year 2015 and Sales Year 2016, Company shall be required to provide, and Pioneer shall be required to purchase, the quantities of Pioneer Products as set forth in Schedule 2.3.2 and at the prices set forth in Schedule 2.3.3.1 .

2.3.3.   For sales in Sales Year 2017 (and continuing thereafter during the term of this Agreement), the following provisions shall apply:

2.3.3.1.   Company shall, on an annual basis on or before June 1 of the applicable SY-2, deliver to Pioneer, in writing, the prices and the terms on which Company or its Affiliates intend to offer Pioneer Products for sale to Pioneer for distribution to Pioneer's customers for the Sales Year in which the then current year is SY-2. The initial prices to be established for the particular Pioneer Products shall be as set forth in Schedule 2.3.3.1 for Sales Year 201 5 and 2016 . The parties agree that the prices for any alfalfa seed varieties offered to Pioneer shall not increase by more than four percent (4%) (the "Cap" ), by variety from the prices for the immediately preceding Sales Year; provided that the parties will discuss in good faith an increase in the Cap for any Sales Year in which an increase in grower compensation costs due to changes in market conditions cause Company's or its Affiliate's total production costs to increase at a percentage exceeding the amount of the Cap.

2.3.3.2.   On or before June 30 of the applicable SY-2, Pioneer shall provide Company, in writing, with a demand plan (hereinafter referred to as the "Initial Demand Plan" )

_________________________
5 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 7 -


specifying the number of units by variety of Pioneer Products it intends to order for sale in the Sales Year for which the then current year is SY-2, including the number of units by variety of Pioneer Products that should be certified, as may be required under applicable state, provincial, federal, or international laws, rules and regulations or any other applicable seed, import or export laws, rules and regulations. The Initial Demand Plan shall include units of each Experimental Variety selected by Pioneer from the Commercialization Selection List for such applicable Sales Year.

2.3.3.3.   With respect to any Initial Demand Plan, Pioneer may, in its sole discretion, by February 1 in the immediately following year (SY-1), provide a revised demand plan (hereinafter referred to as the "Revised Demand Plan" ) to increase the number of units by variety of Pioneer Products it intends to order for sale in the Sales Year for which the then current year is SY-1 (the quantities of Pioneer Products specified in the Revised Demand Plan in excess of the quantities specified in the Initial Demand Plan are hereinafter referred to as the "Increased Demand" ); provided, however, that any such Increased Demand shall not exceed twenty percent (20%) for any single variety as specified in the Initial Demand Plan; and provided, however, that if such Increased Demand would require Company to enter into any grower commitments at pricing that is equal to or greater than one hundred five percent (105%) of Company's average cost for such variety as compared to the applicable costs for such variety in the same Sales Year, then Pioneer will reimburse Company for one-half (1/2) of the incremental costs relating to such grower commitments incurred by Company with respect to the Increased Demand within thirty (30) days following the delivery of an invoice therefor and reasonable supporting documentation.

2.3.3.4.   Company shall be obligated to use commercially reasonable efforts to secure contracted planting acres sufficient (based on average yields for the preceding three-year period), together with any carryover inventory, to provide one hundred ten percent (110%) of the Pioneer Products specified in the Initial Demand Plan or any Revised Demand Plan. On or before September 1 in each calendar year, Company shall deliver to Pioneer written notice of the number of planting acres that Company has contracted for purposes of growing Pioneer Product and the estimated number of Units of Pioneer Products Company expects to deliver to Pioneer for the immediately following Sales Year (including the calculations utilized by the Company in determining the anticipated yield from the specified contracted planting acres). In the event that Company shall not have planted (or caused to be planted) acres sufficient (based on average yields for the preceding three-year period), together with carryover inventory, to provide one hundred ten percent (110%) of the Pioneer Products specified in the Initial Demand Plan or any Revised Demand Plan, and Company shall have failed to timely deliver one hundred percent (100%) of the Pioneer Products specified in the Initial Demand Plan and at least eighty percent (80%) of the Increased Demand by variety specified in the Revised Demand Plan, Company shall pay to Pioneer an amount equal to the product of (i) the number of such units that Company shall have failed to deliver and (ii) [**] 6 , which amounts shall be payable within thirty (30) days following delivery of an invoice therefor. Except as set forth in Section 2.3.7, the foregoing payment will be Pioneer's exclusive remedy and Company's sole liability for any breach of this Section 2.3.3.4 and no breach of this Section 2.3.3.4 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1; provided, however, that (i) if Company shall fail to timely pay any amounts payable pursuant to this Section 2.3.3.4 or (ii) if Company shall be required to make payments pursuant to this Section 2.3.3.4 in three consecutive Sales Years, then breach of this Section 2.3.3.4 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1.

_________________________
6 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 8 -


2.3.3.5.   Commencing with Sales Year 2017, to the extent made available by Company in accordance with the terms and conditions of this Agreement, Pioneer shall be obligated to purchase (i) at least one hundred percent (100%) of the of the Pioneer Products specified in the Initial Demand Plan and (ii) eighty percent (80%) of the Increase Demand by variety specified in the Revised Demand Plan, in each case, on the terms, and subject to the conditions, set forth in this Agreement.

2.3.3.6.   Sales Years 2017 and all subsequent Sales Years, Pioneer shall be obligated to deliver an Initial Demand Plan and, if applicable, a Revised Demand Plan, that, consistent with Section 2.3.3.5 above, would obligate Pioneer to purchase not less than one hundred thirty thousand (130,000) units of Pioneer Products; provided, however, that (i) prior to the Sales Year immediately following the Sales Year in which the transactions contemplated by the Second APSA shall have been consummated (if applicable) and/or (ii) if in any applicable Sales Year (A) Pioneer Products shall include alfalfa seed varieties containing [**] 7 , and (B) Company shall not produce or offer for sale to Pioneer such Pioneer Products, then in either case, the foregoing reference to one hundred thirty thousand (130,000) units of Pioneer Products shall be revised to be one hundred four thousand (104,000) units of Pioneer Products; provided, further, that if a third-party shall offer for sale a New Product, and Company shall fail to deliver an Election Notice or shall fail to satisfy Pioneer's or its Affiliates' requirements for New Products on substantially the same terms offered by such third party, then the foregoing references to one hundred thirty thousand (130,000) units of Pioneer Products and/or to one hundred four (104,000) units of Pioneer Products, if applicable, shall be further reduced by an amount equal to the number of New Products purchased by Pioneer or its Affiliates for sale in such Sales Year from such third party; provided, further, that this Section 2.3.3.6 shall be of no further force or effect to the extent that Company's obligations under Section 2.1.2.3 shall be deemed to be of no further force or effect.

2.3.3.7.   Notwithstanding anything herein to the contrary (including, without limitation, with respect to the twenty percent (20%) limitation for Revised Demand Plans set forth in Section 2.3.3.3), upon the consummation of the Closing under the Second APSA (as such term is defined therein) by the parties (or their respective successors), (i) the Pioneer Products shall automatically be deemed to include the Alfalfa Varieties (as such term is defined in the Production Agreement), and (ii) the then applicable Initial Demand Plan and/or Revised Demand Plan (as such terms are defined in this Agreement), shall automatically be deemed to include the then applicable 2015 Contracted Amount, 2016 Contracted Amount or 2017 Contracted Amount (as such terms are defined in the Production Agreement), and the parties shall amend this Agreement as necessary to reflect the foregoing, together with any other provisions herein as necessary to give effect thereto and to the termination of the Production Agreement and/or the Research Agreement (including, without limitation, to account for any payments made pursuant to the Production Agreement with respect to the Alfalfa Varieties in the relevant Sales Year(s) and to update the Commercial Selection List, Experimental Varieties and the Testing Year Selection List to account for varieties of alfalfa seed that are then the subject of the Research Agreement).

2.3.4.   Subject to Section 2.3.3.5, Pioneer shall have the exclusive right, but not an obligation, to purchase for distribution all amounts of Pioneer Products in the possession of Company or its Affiliates. Not later than May 1 of each Sales Year, Company shall notify Pioneer in writing of the quantities of such Pioneer Products in the possession of Company or its Affiliates. Pioneer's request for such additional quantities of Pioneer Products can be made

_________________________
7 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 9 -


at any time prior to June 1 of the applicable Sales Year. For any amounts of Pioneer Products not purchased by Pioneer in any Sales Year, Company may dispose of such Pioneer Products within the Territory by any of the following means (directly or indirectly): (a) marketing, promoting, distributing, selling or otherwise transferring them as certified blended Company (or Company Affiliate) branded products (using Company or Company Affiliate bags and tags), provided that such products are sold under another variety name, except where prohibited by applicable law, (b) marketing, promoting, distributing, selling or otherwise transferring them as certified blended third party private label branded products, provided that such products are sold under another variety name, except where prohibited by applicable law, or (c) marketing, promoting, distributing, selling or otherwise transferring them (using Company bags and tags or otherwise) as sold as Variety Not Stated (or any similar provision approved by state, federal or international seed regulators to sell such seed in a manner where variety names are not listed) or as blends or mixtures with other non-Pioneer Products; provided, however, that the number of Pioneer Products disposed of by the Company within the Territory in accordance with (a), (b) or (c) above shall not exceed, in any Sales Year, [**] 8 percent ([**] 9 %) of the amount set forth in the Initial Demand Plan and the Revised Demand Plan for such Pioneer Product in such Sales Year. In the event that Pioneer has elected not to purchase excess quantities of Pioneer Products in any Sales Year pursuant to this Section 2.3.4, and the number of such excess quantities of Pioneer Products is greater than [**] 10 percent ([**] 11 %) of the amounts set forth in the Initial Demand Plan and the Revised Demand Plan for such Sales Year, then Company may, no later than June 1 of such Sales Year deliver to Pioneer written notice of its election to enter into good faith negotiations with Pioneer regarding the terms and conditions pursuant to which Company may dispose of the excess quantities of Pioneer Products described in this sentence, whereupon Company and Pioneer shall negotiate such terms and conditions, in good faith, for up to sixty (60) days following the delivery of such written notice. Notwithstanding the above, Company may retain such Pioneer Products to meet subsequent demand plan requests of Pioneer, provided that Company so notifies Pioneer of its intent to do so by June 1 of the applicable Sales Year.

2.3.5.   On or before June 30 in each SY-1, Pioneer shall provide a conditioning request to Company that provides its then current request for Pioneer Products by variety in substantially the form set forth on Schedule 2.3.5 . Pioneer shall have the right to amend such request thereafter to the extent that such Pioneer Products have not yet been conditioned in the manner as originally set forth in any previous conditioning request. By way of example, Pioneer may request changing a previous request for bulk untreated or treated seed to fully conditioned, treated and bagged units, but may not request a change from fully conditioned, treated or untreated, bagged units to bulk conditioned units without an agreement in writing between the parties. As another example, Pioneer may request to change bulk untreated to bulk treated.

2.3.6.   On or before October 1 in each SY-1 (other than SY-1 for Sales Year 2015), Pioneer shall deliver a written delivery plan for Pioneer Products for the applicable Sales Year, which such delivery plan shall specify the applicable delivery point (hereinafter referred to as the "Delivery Point" ); provided, however, that on no less than fifteen (15) days prior written notice given prior to the delivery of the applicable Pioneer Products, Pioneer shall be permitted to modify the applicable Delivery Point for such Pioneer Products. The delivery plan for Pioneer Products for Sales Year 2015 is set forth on Schedule 2.3.6 . To the extent that the Delivery Point is not in Nampa, Idaho, Pioneer will reimburse Company for the costs of shipping and transportation incurred by Company within thirty (30) days following delivery of an invoice therefor (which invoice shall include reasonable supporting documentation). Company shall use its commercially reasonable efforts to deliver Pioneer Products in accordance with such written delivery plan to the specified Delivery Point; provided,

_________________________
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.

- 10 -


however, that Pioneer shall not request delivery of, and Company shall not deliver, Pioneer Products for the applicable Sales Year before November 1 in such SY-1 nor later than February 15 of such Sales Year. Except as set forth in this Section 2.3.6, all Pioneer Products purchased hereunder shall be delivered DDP Delivery Point (Incoterms 2010). Title and risk of loss of the Pioneer Products purchased hereunder shall pass from Company to Pioneer simultaneously with delivery thereof made in accordance with this Section 2.3.6.

2.3.7.   In the event any Pioneer Products fails to meet standards set forth in Appendix A , Pioneer shall notify Company, and shall promptly upon Company's request (and at Company's expense) return such seed to Company. Without limitation to any other provision herein (including Section 7.8), Pioneer shall be entitled to a refund of the purchase price paid for any such Pioneer Products not meeting the standards set forth in Appendix A , together with reimbursement of any costs and taxes incurred by Pioneer in connection with the purchase of such Pioneer Products. Any claim for non-delivery, damage, non-conformance, or other defect of Pioneer Products must be made within sixty (60) days after delivery thereof (or, in the case of non-delivery, within sixty (60) days of the date specified in the written delivery plan submitted pursuant to Section 2.3.6); provided, however, that as to any such cause not reasonably discoverable by visual inspection within such sixty (60) day period, any claim based thereon shall be deemed to be waived by unless made in writing and received by Company no later than fifteen (15) days after Buyer learns of such defect giving rise to such claim. For the avoidance of doubt, any damage or other cause that is not reasonably discoverable without opening any bag or other container shall not be deemed to be reasonably discoverable by visual inspection. All claims not made in writing and received by Company within the time periods specified above shall be deemed waived. No claim will be allowed or returned Pioneer Product accepted if the Pioneer Product has been treated or processed in any manner, except upon proof satisfactory to Company of the existence of a latent defect not ascertainable before treating or processing. Pioneer's exclusive remedy and Company's sole liability for any breach of this Section 2.3.7, shall be (i) with respect to Pioneer Products that are not timely delivered, damages payable pursuant to Section 2.3.3.4, (ii) at Company's option, either (a) replace damaged, non-conforming or defective Pioneer Product with non-damaged, conforming, non-defective Pioneer Product or (b) refund any purchase price paid by Pioneer for the non-conforming Pioneer Product, which replacement or refund shall be made within thirty (30) days of the delivery of written notice thereof, (iii) refund of all reasonable, documented costs incurred in connection with the freight, insurance, transportation, export, or import of such Pioneer Product paid by Pioneer for such late delivery, non-delivery, or damaged, non-conforming or defective Pioneer Product delivery, within thirty (30) days of the delivery of an invoice therefor and reasonable supporting documentation, and (iv) indemnification for third party claims pursuant to Section 7.8.1. No breach of this Section 2.3.7 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1; provided, however, that (i) if Company shall fail to timely replace or pay any amounts payable pursuant to this Section 2.3.7 or (ii) if Company shall be required to replace or make payments for damaged, non-conforming or defective Pioneer Products pursuant to this Section 2.3.7 with respect to more than five percent (5%) of the Pioneer Products purchased in any Sales Year, then breach of this Section 2.3.7 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1.

2.3.8.   Payments for Pioneer Products purchased under this Agreement shall be paid as follows:

2.3.8.1.   On or before January 5, 2015, Pioneer shall pay to Company, with respect to the 2015 Sales Year, four-fifths (4/5) of the total purchase price for the 2015 Pioneer Products specified in Schedule 2.3.2. On or before November 15, SY-1, Pioneer shall pay to Company (i) with respect to the 2016 Sales Year, one third (1/3) of the total purchase price for the 2016 Pioneer Products specified in Schedule 2.3.2 . and (ii) with respect to each other Sales Year thereafter, an amount that is equal to one third (1/3) of the total purchase price for the Pioneer Products (by variety and number of units) specified in the Initial Demand Plan for such Sales

- 11 -


Year, or, if provided to Company, the Revised Demand Plan for such sales year, less the purchase price for twenty percent (20%) of the Increased Demand (by variety and number of units).

2.3.8.2.   On or before January 15, Sales Year, Pioneer shall pay to Company (i) with respect to the 2016 Sales Year, one third (1/3) of the total purchase price for the 2016 Pioneer Products specified in Schedule 2.3.2 . and (ii) with respect to each other Sales Year thereafter, an amount that is equal to one third (1/3) of the total purchase price for the Pioneer Products (by variety and number of units) specified in the Initial Demand Plan for such Sales Year, or, if provided to Company, the Revised Demand Plan for such sales year, less the purchase price for twenty percent (20%) of the Increased Demand (by variety and number of units).

2.3.8.3.   On or before April 15, Sales Year, Pioneer shall pay to Company an amount that is equal to the purchase price for the Pioneer Products purchased by Pioneer and delivered for the applicable Sales Year in accordance with Section 2.3.6 above (such amount hereinafter referred to as the "Sales Year Purchase Price" ), less an amount equal to payments made pursuant to Sections 2.3.8.1 and/or 2.3.8.2 above; provided, however, that if in any Sales Year the amount paid by Pioneer pursuant to Sections 2.3.8.1 and/or 2.3.8.2 is greater than the Sales Year Purchase Price, then Company shall pay to Pioneer an amount equal to such difference not later than April 15, Sales Year.

2.3.8.4.   Any payment not made by the dates referenced above shall accrue interest at the rate of one half percent (1/2%) per month until paid.

2.3.8.5.   Each of Company and Pioneer shall be responsible for (and remit as prescribed by the laws of any duly constituted taxing authority with jurisdiction) any sales, use, value added, goods and services, transfer or similar taxes, or any surcharges or escheat requirements, (collectively, the "Taxes" ) imposed upon such party or its Affiliates by the laws of such jurisdiction in effect at the time Pioneer Products are provided. For jurisdictions where the Taxes are imposed by statute upon Company, without statutory provision for recovery from Pioneer, Company shall bear the Taxes in full and without reimbursement. For jurisdictions where the Taxes are imposed by statute upon Pioneer, Company shall separately itemize the Taxes on each invoice for which the Taxes are applicable. In the alternative, Pioneer may timely provide Company with the required documentation to exempt the Pioneer Products from the Taxes or to evidence Pioneer's authority to remit the Taxes directly.

2.3.8.6.   Pioneer shall withhold income or other Taxes from payments to Company to the extent that such Taxes are required by any duly constituted taxing authority and in no event shall Pioneer be required to "gross up" or increase any payment to Company for such Taxes. Pioneer shall not be responsible for (i) any taxes based upon the assets, capital, equity, gross receipts, net income or taxable margin of Company (or its Affiliates), (ii) any penalties or interest resulting from Company's (or its Affiliates') failure to timely pay any Taxes attributable to the Pioneer Products or, if such Taxes are imposed by applicable law upon Pioneer and remitted through Company, to timely notify Pioneer of such Taxes, (iii) the employer's share of any employment related taxes of any sort (including federal, state and provincial social security taxes and federal, state and provincial unemployment taxes for all employees engaged by Company (or its Affiliates), or (iv) any other taxes or charges applicable to Company's (or its Affiliates') actions, facilities, employees and materials used in providing the Pioneer Products.

2.3.9.   Notwithstanding anything herein to the contrary, the parties acknowledge and agree that Pioneer shall have the right to bag, re-bag, tag, re-tag and blend any Pioneer Products purchased pursuant to this Agreement and to the extent Pioneer or its Affiliates take such

- 12 -


actions (or cause to be taken such actions), Company shall promptly, upon request from Pioneer, perform, complete and deliver the results of, all tests required by law to be conducted in accordance with the standard set forth on Appendix A , including any germination tests, to the extent such samples are provided by or on behalf of Pioneer to Company. Pioneer will reimburse Company for all costs reasonably incurred by Company in performing the testing described in this Section 2.3.9.

2.3.10.   Notwithstanding anything herein to the contrary, the parties acknowledge and agree that Pioneer shall have the right to treat or retreat (or coat or re-coat) any Pioneer Products in their sole discretion, and the same will not constitute a violation of the Patent License (as such term is defined in the APSA), any Company Rights or any other intellectual property rights of Company or its Affiliates.

3. Additional Obligations

3.1.   Company will provide Pioneer with reasonable access to an agronomist and/or research scientist and such other sales support, assistance, advice and other information (as is mutually agreeable) to enhance Pioneer's ability to perform its obligations under this Agreement.

3.2.   If Pioneer reasonably determines that registration or inscription of one or more Pioneer Products is necessary or desirable in the Territory, Company agrees to use commercially reasonable efforts to cooperate with (and to cause its Affiliates to use commercially reasonable efforts to cooperate with) Pioneer and its Affiliates in order to obtain and maintain such registration or inscription. The costs payable to applicable governmental bodies for obtaining and/or maintaining any such registration or inscription shall be borne solely by Pioneer.

3.3.   Company agrees that it will (and will cause its Affiliates to) utilize the tagging equipment specified by Pioneer during the term of this Agreement for all Pioneer Products purchased by Pioneer hereunder. Pioneer shall provide tag printing guidelines to Company and its Affiliates, as the same may be updated or revised by Pioneer on reasonable prior written notice. Pioneer shall provide the software required to support the dedicated tagging printer utilized by Company for purposes of supply Pioneer Products pursuant to the terms of this Agreement.

3.4.   Company shall ensure (and shall cause its applicable Affiliates to ensure) that germination tests as required by law are conducted in accordance with standards set forth on Appendix A on each lot of Pioneer Products.

3.5.   For purpose of data to be submitted to Pioneer for alfalfa seed varieties in the Testing Year Selection List and the Commercialization Testing List, Company shall conduct testing that includes the then most current Pioneer Products and other then current representative samples of competitor products in the U.S. market.

3.6.   In February 2015 and in December of each calendar year during the term of this Agreement, the representatives of Company and Pioneer shall meet (in person or telephonically) to review and discuss the varieties of alfalfa seed in Company's pipeline, including, without limitation, the Experimental Varieties. Starting in calendar year 2015 and continuing for the duration of this Agreement, and subject to compliance with Company's, its applicable Affiliate's or any applicable third party's visitor safety rules and requirements, Company shall, during Company's or its applicable Affiliate's normal business hours and on not less than five days prior written notice to Company, permit Pioneer to visit Company's or its applicable Affiliate's locations where Pioneer Products are grown, tested, or packaged with its agents or employees who are subject to confidentiality agreements similar in scope and nature to Section 7.14 hereof, and Company shall use its commercially reasonable efforts to cause any third party that grows, tests or packages Pioneer Products on behalf of Company or its Affiliates to permit Pioneer, its agents or employees to visit such applicable locations, in all events for the limited purpose of observing the manufacture, production, research, testing and/or packaging of Pioneer Products by or on behalf of Company or its Affiliates; provided, however, that such visit or observation shall not unreasonably interfere with activities carried out by Company, its Affiliates or such third parties at such locations.

- 13 -


3.7.   No breach of the obligations in Sections 3.1 through 3.3 will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 6.2.1.

4. Warranty

4.1.   Company agrees to use commercially reasonable efforts to cooperate (and to cause its Affiliates to use commercially reasonable efforts to cooperate) when Pioneer may reasonably request to limit liability of Pioneer, its Affiliate and their respective Dealers and Company to any person to whom Pioneer, its Affiliates or their respective Dealers sells such products, including making the bag and tag language set forth on the Pioneer Products, or other terms as Pioneer provides from time-to-time as part of the terms of sale of the Pioneer Products to all ultimate purchasers or users.

4.2.   Company will cooperate (and shall cause its Affiliates to cooperate) with Pioneer in providing legal documentation, and tests, reasonably requested by Pioneer in order to obtain all necessary registrations, permissions and approvals for the distribution of the Pioneer Products in the Territory.

4.3.   Company represents and warrants that, at the time Company delivers (or causes to be delivered) the Pioneer Products at the Delivery Point, (i) such Pioneer Products are free of all encumbrances (including all liens and security interests), (ii) Company has good title to the Pioneer Products, with the right to sell the Pioneer Products to Pioneer and (iii) such Pioneer Products will meet the specifications set forth on Appendix A , except as agreed to by the parties in writing, and will be useable and saleable in the ordinary course of business.

4.4.   Company represents and warrants that the marketing, promotion, distribution and sale of the Pioneer Products by Pioneer (or its Affiliates or their respective Dealers) in the Territory will not infringe any third party's intellectual property rights.

4.5.   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT MAKE AND COMPANY HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO SEED, INCLUDING, WITHOUT LIMITATION, IMPLIED CONDITIONS OR WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.

5. Trademarks

5.1.   Pioneer hereby grants to Company the non-exclusive right and license to use the Trademarks: in the Territory under the terms and conditions generally imposed by Pioneer for such licenses solely for purposes of satisfying Company's obligations under the terms and conditions of this Agreement. Company hereby agrees to comply with these terms and conditions and also agrees to execute the Trademark License set forth on Appendix C .

5.2.   Pioneer may refuse sale under the Trademarks of any Pioneer Products which Pioneer determines was stored by improper methods or conditions or does not conform to Pioneer standards or the specifications set forth in Appendix A ; provided, that, Pioneer will not be obligated to purchase from Company such Pioneer Products pursuant to this Agreement.

5.3.   During the term of this Agreement, Pioneer shall at its own expense provide Company with such bags and tags that are necessary for the bagging of the Pioneer Products. Pioneer shall determine the appropriate bag and tag language that should be on the bag or on the tag to be attached to the bag. Company shall provide the equipment and printers necessary to print on demand such language as may be necessary to be on the tag at the time of conditioning.

5.4.   During the term of this Agreement, Pioneer shall at its own expense provide Company with the pallets that are reasonably necessary to facilitate the supply of the Pioneer Products pursuant to the

- 14 -


terms of this Agreement. The parties acknowledge and agree that the pallets located at the Transferred Plant Site in Nampa shall satisfy Pioneer's obligations under this Section 5.4 until such time as Company shall otherwise notify Pioneer in writing.

6. Term and Termination

6.1.   This Agreement shall be effective as of the date first written above and, unless terminated in accordance with Section 6.2 below, shall continue until September 30, 2024; provided, however, that the parties acknowledge and agree that Pioneer will not deliver any Demand Plan for any Sales Year commencing after the expiration of this Agreement.

6.2.   Notwithstanding the provisions of Section 6.1:

6.2.1.   either party shall have the right to terminate this Agreement by giving sixty (60) days written notice to the other party in the event of any material breach of this Agreement by the other party (which notice shall provide reasonable detail of such breach by the other party) and a failure to cure such breach within such sixty (60) day period.

6.2.2.   either party shall have the right to terminate this Agreement immediately by giving written notice to the other party if the other party shall be adjudicated a bankrupt or make an arrangement for the benefit of creditors, or bankruptcy, insolvency, reorganization, arrangement, debt adjustment, receivership, liquidation or dissolution proceedings shall be instituted by or against the other party and, if instituted adversely, the other party consents to the same or admits in writing the material allegations thereof or said proceedings shall remain undismissed for ninety (90) days.

6.3.   Upon expiration or termination of this Agreement, except as provided in Section 7.11, all rights and obligations under this Agreement shall become null, void and ineffective, except that the rights and obligations of either party that have accrued shall not be affected thereby. The foregoing notwithstanding, Pioneer (or its Affiliates or their respective Dealers) may sell the Pioneer Products delivered to Pioneer pursuant to this Agreement during the Sales Year in which this Agreement expires in accordance with Section 6.1, or if this Agreement is terminated pursuant to Section 6.2, in the Sales Year in which this Agreement is terminated or in the next succeeding Sales Year.

6.4.   The right of either party to terminate this Agreement is not an exclusive remedy, and upon breach of this Agreement, either party shall be entitled alternatively or cumulatively to any available remedy against the other party at law or in equity.

7. General Provisions

7.1.   Waiver . Any failure to enforce a breach shall not constitute a waiver of such breach. Performance of any obligation required of a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described in such duly executed written waiver. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach of the same provision or another provision of this Agreement.

7.2.   Severability . If any provision hereof is found invalid or unenforceable pursuant to any executive, legislative, judicial or other decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, unless either party deems the invalid or unenforceable provisions to be essential to this Agreement, in which case such party may terminate this Agreement, effective immediately, upon written notice to the other party.

7.3.   Governing Law: Dispute Resolution: Section Titles .

7.3.1.   Except as set forth in Section 7.3.7, any dispute between the parties arising out of or relating to this Agreement or the transactions contemplated hereby, or the interpretation, validity or

- 15 -


effectiveness of this Agreement, or any provision of this Agreement, in the event the parties fail to agree, shall, upon the written request of a party, be referred to designated senior management representatives of the parties for resolution. Such representatives shall promptly meet and, in good faith, attempt to resolve the controversy, claim or issues referred to them.

7.3.2.   If such representatives do not resolve the dispute within thirty (30) days after the dispute is referred to them, the dispute shall be settled by binding arbitration, in accordance with the Center for Public Resources (hereinafter referred to as " CPR" ) Rules for Non-Administered Arbitration of Business Disputes. For disputes in which the amount in controversy is less than or equal to U.S. $1,000,000, the parties shall mutually select one (1) neutral arbitrator who shall be qualified by experience and training to arbitrate commercial disputes. If the parties cannot agree on an arbitrator or if the amount in controversy exceeds U.S. $1,000,000, such dispute shall be settled by three (3) arbitrators who shall be qualified by experience and training to arbitrate commercial disputes, of whom each party involved in the arbitration shall appoint one, and the two appointees shall select the third, subject to meeting the qualifications for selection. If the parties have difficulty finding suitable arbitrators, the parties may seek assistance of CPR and its CPR Panels of Distinguished Neutrals. Judgment upon the award or other remedy rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be in Des Moines, Iowa. The arbitrators shall apply the substantive law of the State of Iowa, without regard to its conflicts of law principles, and their decision thereon shall be final and binding on the parties. Discovery shall be allowed in any form agreed to by the parties, provided that if the parties cannot agree as to a form of discovery (i) all discovery shall be 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 Pioneer and fifty percent (50%) by Company. 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 7.10 (as such address may be updated from time to time in accordance with the terms of Section 7.10). Any arbitration contemplated by this Section 7.3 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 7.10 (as such address may be updated from time to time in accordance with the terms of Section 7.10) 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.

7.3.3.   All proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the parties to each other or to the arbitration panel in connection with this Section 7.3 shall be deemed to be in furtherance of settlement negotiation and shall be privileged and confidential, and shielded from production in other proceedings except as may be required by applicable law.

7.3.4.   This Agreement shall be governed by the substantive laws of the State of Iowa, without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Des Moines, Iowa shall have exclusive jurisdiction over any proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement or the transactions contemplated hereby. The parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 7.10 (as such address may be updated from time to time in accordance with the terms of Section 7.10).

- 16 -


7.3.5.   The parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the parties.

7.3.6.   Notwithstanding anything to the contrary in this Section 7.3, either party to this Agreement may seek, in the State or Federal courts in the City of Des Moines, Iowa, interim or provisional injunctive relief (or similar equitable relief) to maintain the status quo until such time as the designated senior management representatives of the parties resolve a dispute referred to them or an arbitration award or other remedy is entered in connection with such dispute pursuant to this Section 7.3 and, by doing so, such party does not waive any right or remedy available under this Agreement.

7.3.7.   Company acknowledges and agrees that Pioneer would be irreparably harmed by any violation by Company of the restrictive covenants set forth in Section 5 and that, in addition to all other rights and remedies available to Pioneer at law or in equity (which in all events shall be subject to the applicable limitations contained herein), Pioneer shall be entitled to injunctive and other equitable relief to prevent or enjoin any such violation.

7.3.8.   Titles of sections are for reference only and shall not govern the interpretation of this Agreement.

7.4.   Entire Agreement; Modifications. This writing (together with the APSA and the Second APSA, if applicable, and the Transaction Documents, as such term is defined in the APSA) contains the entire agreement between the Parties superseding any prior agreements dealing with the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing, signed by the parties.

7.5.   Assignment . 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; provided, however, that no consent shall be required if this Agreement is assigned by a party to an Affiliate or in connection with the sale, transfer or assignment of all or substantially all of the party's business or assets and such Affiliate or purchaser, transferee or assignee shall have agreed, in a writing reasonably acceptable to the other party, to be bound by the terms of this Agreement and to assume such party's obligations hereunder; provided, further, that in the case of Company, Company may only assign this Agreement to an Affiliate if (i) such Affiliate is wholly-owned by Company and (ii) Company shall have executed and delivered to Pioneer a guaranty in substantially the same form as the Guaranty (as defined in the APSA), pursuant to which Company shall guaranty all of the obligations of such wholly-owned Affiliate under this Agreement. Any attempted assignment in violation of this Section 7.5 shall be void.

7.6.   Third Party Benefits . This Agreement shall be binding upon, and inure to the benefit of each of the parties and their respective successors and permitted assigns. Nothing contained in this Agreement, express or implied, shall be deemed to confer any right or remedy upon, or obligate any party hereto to, any person or entity other than the parties hereto.

7.7.   Force Majeure . The failure or delay of either party to perform any obligation under this Agreement by reason of acts of God, adverse weather conditions (either from the perspective of agricultural production of seed or its shipment by sea/air), epidemics, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes or disturbances, fire, transportation contingencies, shortage of facilities, fuel, energy, labor or materials, or laws, regulations, acts or orders of any governmental agency or official thereof, other catastrophes, or any other circumstance beyond its reasonable control ( "Force Majeure" ) shall not be deemed to be a breach of this Agreement so long as the party so prevented from complying with this Agreement shall have used its commercially reasonable efforts to avoid such Force Majeure or to ameliorate its effects, and shall continue to take all actions within its power to comply as fully as possible with the terms of this Agreement. In the event of any such default or breach, performance of the obligations shall be deferred until the Force Majeure ceases.

- 17 -


7.8.   Indemnification .

7.8.1.   Company will defend, indemnify, protect and hold harmless Pioneer, its Affiliates and their respective executives, officers, directors, stockholders, representatives, employees, agents (including, without limitation Dealers), parent companies, and subsidiaries from and against any and all demands, actions, recalls, claims, obligations, causes of action, complaints, lawsuits and legal or other similar proceedings ( "Claims" ) and any judgments, penalties, fines, settlements, losses, liabilities, damages and costs (including attorney's fees) resulting from any Claims to the extent Claims arise out of or are related to a breach by Company or its Affiliates of this Agreement (including, without limitation, any breach of the warranties set forth in Section 4).

7.8.2.   Pioneer shall defend, indemnify, protect and hold harmless Company, its Affiliates and their respective executives, officers, directors, stockholders, representatives, employees, agents, parent companies, and subsidiaries from and against any and all Claims and any judgments, penalties, fines, settlements, losses, liabilities, damages and costs (including attorney's fees) resulting from any Claims to the extent such Claims arise out of or are related to a breach by Pioneer or its Affiliates of this Agreement.

7.9.   Limitation on Liability. THE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY 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), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OTHER THAN FOR SUCH DAMAGES OR LOST PROFITS ACTUALLY INCURRED BY SUCH PARTY PURSUANT TO A THIRD-PARTY CLAIM. NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE AMOUNT OF THE AMOUNTS PAID BY OR TO IT HEREUNDER DURING THE TWELVE MONTH PERIOD PROCEEDING THE DATE SUCH CLAIM, DEMAND OR ACTION ARISES (OR IN THE CASE OF CLAIMS, DEMANDS OR ACTIONS ARISING PRIOR TO THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, DURING THE TWELVE MONTH PERIOD FOLLOWING THE EFFECTIVE DATE), PROVIDED THAT THE FOREGOING LIMITATION ON DAMAGES SHALL NOT APPLY TO (I) LOSSES OR DAMAGES ACTUALLY INCURRED BY SUCH PARTY PURSUANT TO A THIRD-PARTY CLAIM, (II) CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY, OR (III) LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO A BREACH OF SECTION 2.3.3.5, 2.3.3.6, 2.3.8.1, 2.3.8.2 OR 2.3.8.3.

7.10.   Notices . All notices, demands, requests, consents or other communications hereunder shall be in writing and shall be deemed sufficiently given if personally delivered, in which case such notice shall be deemed received upon delivery, or sent by prepaid air courier of internationally recognized repute, in which case such notice shall be deemed received upon receipt of confirmation of transmission of the telefax to the parties at the following address, or to such other address as may be designated by written notice given by either party to the other party:

If to Pioneer:

PIONEER HI-BRED INTERNATIONAL, INC.
Attention: General Counsel
DuPont Pioneer
7250 N.W. 62 nd Ave.
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-4844

- 18 -


If to Company:

S&W SEED COMPANY
Attention:
Chief Financial Officer
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax:
(559) 255-5457

7.11.   Survival: In addition to any accrued rights. The provisions under Sections 6.1, 6.3, 6.4 and this Article 7 (together with any other provisions of this Agreement necessary to give effect thereto) shall survive any expiration or termination of this Agreement and shall remain in full force and effect thereafter.

7.12.   Relationship of the Parties . Pioneer and its Affiliates are independent purchaser and/or sellers of the Pioneer Products and shall not be considered an agent, partner or legal representative of Company or its Affiliates for any purpose. Pioneer shall perform its obligations under this Agreement and otherwise conduct its business in its own name and for its own account. Without limitation to the foregoing, the parties acknowledge and agree that Pioneer and its Affiliates shall at all times be considered an independent contractor and shall establish its own sales prices for its sales of products to its Dealers and customers.

7.13.   Conflict. In the event of conflict between the terms of this Agreement and the provisions of any printed standard terms and conditions of sale covering the sale of Pioneer Products and/or terms on invoices, the terms of this Agreement shall prevail.

7.14.   Confidentiality .

7.14.1.   For purposes of this Agreement, "Confidential Information" means this Agreement, and the Schedules and Exhibits hereto, and any information disclosed by one party or its Affiliates or their representatives to the other party or its Affiliates or their representatives in connection with the transactions contemplated hereby and identified in writing as "confidential" or similar notation. Except as otherwise permitted by this Agreement, a party shall not, and shall cause its Affiliates and their respective employees, consultants, agents and attorneys not to, disclose the Confidential Information of the disclosing party or its Affiliates or their representatives to any third party or use the Confidential Information except for purposes of this Agreement and the transactions contemplated hereby without the prior written permission of the disclosing party for a period of five (5) years after the date of disclosure; provided, that the foregoing obligations of confidentiality and restricted use shall not extend to information that is: (i) already known at the time of its receipt by the receiving party, as shown by its prior written records; (ii) properly in the public domain through no fault of the receiving party; (iii) disclosed to the receiving party by a third party who may lawfully do so; or (iv) independently developed by or for the receiving party without use of the disclosing party's Confidential Information.

7.14.2.   Notwithstanding Section 7.14.1, a receiving party may disclose Confidential Information of the disclosing party required to be disclosed by applicable law or the rules or regulations of any U.S. or foreign securities exchange (if not subject to protection as confidential business information or otherwise protected by statute or common law privilege against disclosure); provided, however, that prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (i) give the other party written notice of such requirement prior to any such disclosure and (ii) allow the other party reasonable time to take such steps as to limit such disclosure. The parties shall cooperate with one another in the good faith making or assertion of any available defense or privilege relating to the disclosure of the Confidential Information.

- 19 -


7.14.3.   Notwithstanding the foregoing, a receiving party may disclose Confidential Information to its Affiliates, and their respective officers, directors, employees, consultants, agents and attorneys (including, without limitation, Dealers) having a need to know for the purposes of consummating the transactions contemplated hereby and who are subject to a confidentiality agreement or obligation covering such information.

7.14.4.   Notwithstanding anything to the contrary contained in this Section 7.14, each party agrees that it shall, and shall cause its Affiliates and their respective officers, directors, employees, consultants, agents and attorneys to, (i) take reasonable measures to protect the secrecy, and avoid disclosure, except as expressly permitted by this Section 7.14, and unauthorized use, of the Confidential Information of the other party and its Affiliates and (ii) with respect to the Confidential Information of the other party and its Affiliates, take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care.

7.15.   Language. This Agreement may be executed in counterparts, all of which together constitute a single instrument. This Agreement may also be executed in English and another language. In the event there is a dispute regarding meaning, the English version shall control.

[Signature Page Follows]

- 20 -


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

PIONEER HI-BRED INTERNATIONAL, INC.

S&W SEED COMPANY

By __________________________________

By ___________________________________

Name:

Name:

Title:

Title:

   

 

 

 

[Signature Page to Distribution Agreement]

EXHIBIT 10.2

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

CONTRACT ALFALFA PRODUCTION SERVICES AGREEMENT

This Contract Alfalfa Production Services Agreement (including all Exhibits hereto, as amended, modified or supplemented from time to time in accordance with its terms, the "Agreement" ) is made and entered into on December 31, 2014 by and between Pioneer Hi-Bred International, Inc., a corporation organized and existing under the laws of the State of Iowa, with its principal place of business at 7100 NW 62 nd Ave., P.O. Box 1014, Johnston, Iowa 50131, hereinafter referred to as "Pioneer" and S&W Seed Company, a corporation organized and existing under the laws of Nevada, with its principal place of business at 25552 South Butte Avenue, Five Points, California 93624, hereinafter referred to as "Contractor" .

WITNESSETH THAT:

WHEREAS , Contractor has field production capacities and seed conditioning and warehousing facilities acquired under that certain Asset Purchase and Sale Agreement, dated as of December 19, 2014 by and between Pioneer and Contractor (the "APSA" );

WHEREAS , Pioneer may acquire additional varieties of alfalfa seed following the date hereof, as provided herein;

WHEREAS , Pioneer and Contractor desire that Contractor perform Field Services, Conditioning Services, Bagging and Treating Services, quality control services, Handling Services and stewardship services (together, the " Production Services" ) relative to Pioneer's Alfalfa Varieties and any Purchased Units, and subject to the terms and conditions herein set forth; and

WHEREAS , capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the APSA.

NOW THEREFORE , in consideration of the premises and of the mutual covenants herein contained, it is hereby agreed as follows:

1.    Definitions.

For purposes of this Agreement, the following terms shall have the meanings specified here:

  1. "2015 Contracted Amount" - is defined in Section 2(B)(i) .
  2. "2016 Contracted Amount" - is defined in Section 2(B)(ii) .
  3. "2017 Contracted Amount" - is defined in Section 2(B)(iii) .
  4. "Agreement" - is defined in the preamble.

  1. "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.
  2. "Alfalfa Varieties" shall mean the varieties set forth on Exhibit A , as the same may be amended, modified or supplemented according to Section 24 .
  3. "APSA" - is defined in the recitals.
  4. "Bagging and Treating Services" - means packaging in bags or ProBoxes, tagging, labeling, treating with fungicide and inoculants and palletizing and plastic wrapping Alfalfa Varieties and any Purchased Units.
  5. "Calendar Year Purchase Price" - is defined in Section 9(A)(iii) .
  6. "Change of Control " - is defined in Section 15(C).
  7. "Claims" - is defined in Section 20(A) .
  8. "Conditioning Services" - means cleaning, sampling, handling and testing Alfalfa Varieties.
  9. "Confidential Information" - is defined in Section 14(A) .
  10. "Contracted Amount" - is defined in Section 2(B) .
  11. "Contractor Agreements" - is defined in Section 20(C) .
  12. "Contractor" - is defined in the preamble.
  13. "CPR" - is defined in Section 16(B) .
  14. "CY-1" - means, for any given calendar year, the twelve-month period beginning on January 1 and ending on December 31 of the calendar year immediately preceding such calendar year. By way of example, in 2019, CY-1 shall be the calendar year 2018.

- 2 -


  1. "Delivery Point" - is defined in Section 5(B) .
  2. "Distribution Agreement" - means the Alfalfa Distribution Agreement by and between Pioneer and Contractor dated of even date herewith.
  3. "Field Services" - means all aspects of Alfalfa Variety production, including, but not limited to, (i) locating and contracting for fields that meet appropriate Pioneer standards, (ii) providing field supervision of growers, (iii) providing and accounting for all Parent Alfalfa Varieties, (iv) supervising all planting, including replanting, (v) monitoring the growing alfalfa, (vi) applying all appropriate pesticides herbicides, fungicides, fertilizer, and (vii) properly managing the harvesting of Alfalfa Varieties, and (viii) inspecting the growers' planting and harvesting equipment to insure the equipment is clean and in good operating condition before utilization in growing, harvesting and handling Alfalfa Varieties.
  4. "Force Majeure" - is defined in Section 19 .
  5. "Grower Contracts" - is defined in Section 12(A) .
  6. "Grower Obligations" - is defined in Section 12(A) .
  7. "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.
  8. "Handling Services" - means Alfalfa Variety loading, unloading, inventory and tracking documentation, administration, lot tracking, insurance and storage.
  9. "Improvements" - means any invention or discovery (patentable or not) which is developed, conceived or reduced to practice during the term of this Agreement solely in connection with Contractor's performance of its obligations under this Agreement. For the avoidance of doubt, Improvements shall not include any invention or discover that is developed, conceived or reduced to practice by Contractor outside of Contractor's performance of its obligations under this Agreement and without the use of any Confidential Information disclosed by Pioneer, its Affiliates or their representatives, in all events, solely to the extent such inventions or discoveries are not developed, conceived or reduced to practice as a result of any breach by Researcher of this Agreement.

  1. "Initial Demand Plan" - is defined in Section 2(B)(ii) .

  1. "IT Transition Services Agreement" - means the Information Technology Transition Services Agreement by and between Pioneer and Contractor dated of even date herewith.

- 3 -


  1. "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.

  1. "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.

  1. "New Grower Contracts" - is defined in Section 12(B) .

  1. "Parent Alfalfa Varieties" - means the proprietary male and female alfalfa varieties owned and supplied by Pioneer that are used to produce the Alfalfa Varieties under this Agreement.

  1. "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.

  1. "Pioneer" - is defined in the preamble.

  1. "Production Services" - is defined in the recitals.

  1. "Protest Notice" - is defined in Section 9(A)(ii) .

  1. "Purchased Units" - means the number of Units of varieties of alfalfa seed, up to fifteen thousand (15,000) Units, purchased by Pioneer on or after the date of this Agreement and on or prior to April 14, 2015 and that have been delivered by or on behalf of Pioneer to Contractor's Nampa, Idaho facility.

  1. "Research Agreement" - means the Research Agreement by and between Pioneer and Contractor dated of even date herewith.

  1. "Revised Demand Plan" - is defined in Section 2(B)(ii) .

  1. "[**] 1 Trait" - means [**] 2 proprietary first generation [**] 3 trait that includes the event [**] 4 .

_________________________
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 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 4 -


  1. "Specifications" - means the quality standards and specifications set forth on Exhibit D , as the same may be amended, modified or supplemented according to Section 24 .

  1. "Stewardship Policies" - means (i) certain Pioneer stewardship policies, copies of which are attached hereto as Exhibit E , as the same may be amended, modified or supplemented according to Section 24 , and (ii) stewardship policies provided to Contractor by [**] 5 or [**] 6 in connection with any Contractor Agreement.

  1. "Taxes" - is defined in Section 9(C) .

  1. "Unit" - means each fifty (50) pound bag or equivalent if in bulk or smaller packages.

2.    Production Arrangement

  1. Contractor shall use commercially reasonable efforts to perform the Production Services specified in this Agreement to produce the Contracted Amounts set forth in Section 2(B) ; provided, however, that with respect to the 2015 Contracted Amounts, Contractor shall only perform Bagging and Treating Services, quality control services, Handling Services and stewardship services in accordance with the terms of this Agreement.
  2. Contracted Amount . The number of Units of Alfalfa Varieties (and any Purchased Units) to be produced each calendar year by Contractor pursuant to this Agreement or with respect to which Production Services will be provided by Contractor pursuant to this Agreement (for each calendar year, the "Contracted Amount" ) shall be as set forth in this Section 2(B) .
    1. For calendar year 2015, the Contracted Amount (the "2015 Contracted Amount" ) shall equal (i) the number of Units of Alfalfa Varieties that have been harvested by Pioneer and are located at Contractor's Nampa, Idaho facility, and (ii) the Purchased Units.
    2. For calendar year 2016, the Contracted Amount (the "2016 Contracted Amount" ) shall equal the number of Units of Alfalfa Varieties meeting the Specifications and produced from the acres specified in Exhibit F .
    3. For calendar year 2017, the Contracted Amount shall equal the number of Units of Alfalfa Varieties meeting the Specifications and produced from the acres specified in the Initial Demand Plan, or Revised Demand Plan, if applicable (the "2017 Contracted Amount" ). On or before June 30, 2015, Pioneer shall provide Contractor, in writing, with a demand plan (hereinafter

_________________________
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.

- 5 -


      referred to as the "Initial Demand Plan" ) specifying the number of Alfalfa Variety acres from which Pioneer requires production, specified by variety, for calendar year 2017. With respect to the Initial Demand Plan, Pioneer may, in its sole discretion, by February 1, 2016, provide a revised demand plan (hereinafter referred to as the "Revised Demand Plan" ) to increase the number of Alfalfa Variety acres from which Pioneer requires production for calendar year 2017; provided , however , that any increase in required production shall not exceed twenty percent (20%) for any single variety as specified in the Initial Demand Plan. If (i) Pioneer shall have delivered an Initial Demand Plan or a Revised Demand Plan for Pioneer Products to be purchased for Sales Year 2017 (as such terms are defined in the Distribution Agreement), specifying an aggregate amount equal to less than 130,000 Units of Pioneer Products and (ii) Contractor shall have all rights required to produce and offer for sale to Pioneer alfalfa seed varieties containing [**] 7 , then the Initial Demand Plan delivered pursuant to this Agreement, as revised by a Revised Demand Plan delivered pursuant to this Agreement, shall specify at least that number of acres that is equal to (x) 9,285 minus (y) (1) the number of Units of Pioneer Products specified in the Initial Demand Plan or Revised Demand Plan delivered pursuant to the Distribution Agreement (as applicable) divided by (2) 14.

  1. Exclusive Arrangement . Pioneer hereby appoints, and causes its Affiliates to appoint, Contractor as Pioneer's and its Affiliates' exclusive provider of Production Services for the Alfalfa Varieties during the term of this Agreement (unless earlier terminated in accordance with Section 15 hereof).
  2. During the term of this Agreement, Contractor will (i) use its commercially reasonable efforts to (a) enter into any and all amendments to that certain [**] 8 Alfalfa Seed Production Agreement by and among Contractor and the other parties thereto, as shall be necessary to permit Contractor to perform Production Services for Pioneer and its Affiliates under the terms of this Agreement and (b) obtain and maintain, and perform its obligations in accordance with, all Contractor Agreements, and (ii) until such time as Contractor shall have executed the amendment described in Section 2(D)(i)(a) above (and one or both of the third parties that are a party to such amendment shall have confirmed the same in writing to Pioneer), Contractor shall, in addition to any and all terms and conditions set forth herein (including, without limitation, compliance with Stewardship Policies and Section 10 hereof), perform all Production Services for the Alfalfa Varieties in accordance with the terms and subject to the conditions set forth in Exhibit K attached hereto (with respect to which, Contractor shall be deemed to be the "Licensee").

_________________________
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.

- 6 -


  1. Subject to the terms of this Agreement and the IT Transition Services Agreement, on and after the date of this Agreement, Contractor, at its sole cost and expense, shall, and shall cause its applicable Affiliates to, use commercially reasonable efforts to obtain all information technology systems and support (whether hardware, software or otherwise) reasonably required by Contractor to perform its obligations under this Agreement upon the expiration or earlier termination of the applicable Services (as the term Services is defined in the IT Transition Services Agreement), which systems and support include, without limitation, any reasonably required systems and support provided by Pioneer pursuant to the IT Transition Services Agreement.  On and after the date of this Agreement until April 1, 2015, Pioneer shall cooperate with Contractor in Contractor's efforts to obtain such systems and support; provided , however , that in no event shall Contractor be entitled to extend any Service Term (as such term is defined in the IT Transition Services Agreement) without the prior written consent of Pioneer, which consent may be withheld by Pioneer for any or no reason in its sole and absolute discretion.

3.    Field Services.

  1. For each applicable calendar year during the term of the Agreement, Contractor shall be obligated to use commercially reasonable efforts to secure sufficient contracted planting acres to meet the requirements specified in the Initial Demand Plan and/or the Revised Demand Plan, as applicable. In the event that, for calendar year 2017, Contractor shall not have planted (or caused to be planted) such acres, Contractor shall pay to Pioneer an amount equal to (i) the number of the acres short of the number of acres specified in the Initial Demand Plan, and/or the Revised Demand Plan, as applicable, multiplied by (ii) [**] 9 , which amounts shall be payable within thirty (30) days following delivery of an invoice therefor; provided , however , that for purposes of calculating the number of acres short of the number of acres specified in the Revised Demand Plan, Contractor shall only be required to pay such amounts in respect of the number of acres that is up to twenty percent (20%) of the acres specified in the Initial Demand Plan. Except as set forth in Section 5(C) , the foregoing payment will be Pioneer's exclusive remedy and Contractor's sole liability for any breach of this Section 3(A) and no breach of this Section 3(A) will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 15B(i) ; provided, however, that (i) if Contractor shall fail to timely pay any amounts payable pursuant to this Section 3(A) or (ii) if Contractor shall be required to make payments pursuant to this Section 3(A) in three consecutive calendar years, then breach of this Section 3(A) will constitute grounds for termination of this Agreement by Pioneer pursuant to Section 15B(i) .
  2. Each year during the term of this Agreement, Contractor shall complete the planting of production fields in time periods consistent with standard practices for alfalfa production in the applicable growing area. Any intended planting during time periods

_________________________
9 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 7 -


    outside of those consistent with standard practices, including planting in replanted acres, shall first be approved in writing by Pioneer.

  1. All costs associated with the planting, including grower compensation of any form, replant costs, monitoring, fertilizing, spraying, weed control, diseases, insect control, irrigation, insurance, harvesting and transportation shall be borne entirely by Contractor. Contractor shall account for all Parent Alfalfa Varieties provided by Pioneer and shall require all growers to return to Contractor any unused Parent Alfalfa Varieties. Contractor shall return all unused Parent Alfalfa Varieties to Pioneer no later than fifteen (15) days after completing the applicable planting.
  2. Contractor's selection and use of growers shall be subject to Pioneer's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Contractor shall, and shall cause all growers to, follow all field production standards contained in (x) the Stewardship Policies or (y) in any other quality standards or policies provided to Contractor by Pioneer from time to time (other than the Stewardship Policies) provided that with respect to the quality standards and policies referenced in (y) above, Contractor shall, and shall cause all growers to, follow such standards from and after the date of delivery thereof. Without limitation to the foregoing, and in addition to the terms and conditions set forth herein, until such time as Contractor shall have executed the amendment described in Section 2(D)(i)(a) above (and one or both of the third parties that are a party to such amendment shall have confirmed the same in writing to Pioneer), Contractor shall, and shall cause all growers to, perform their respective obligations under this Agreement in accordance with the terms, and subject to the conditions, set forth in Exhibit K (with respect to which, Contractor shall be deemed to be the "Licensee").
  3. Any fields planted with seeds containing the [**] 10 Trait shall be inspected by a trained qualified inspector during the growing season and any multiplication contracts with growers shall meet all required quality assurance guidelines provided by Pioneer or by or on behalf of [**] 11 or [**] 12 . Upon reasonable notice, Contractor shall allow Pioneer full access to all production fields containing the Parent Alfalfa Varieties and Alfalfa Varieties production areas for the purpose of verifying compliance with the terms of this Agreement. Upon request, Contractor shall provided Pioneer with maps of field locations, acres per field reports showing planting dates and rates of Parent Alfalfa Varieties used. Contractor shall record all field visits observations in written form and, upon request, shall provide Pioneer with such field inspection reports. On or before each July 15, August 15, September 15, and October 15, Contractor shall provide Pioneer with its best estimate of the expected Alfalfa Variety production from each field. In the event that a field has been identified as to having quality concerns, all

_________________________
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.

- 8 -


    such production shall be separated and stored separately until such time as a determination is made by Pioneer as to the quality. Each grower production contracts shall specifically provide that such grower has no rights to the Alfalfa Varieties, or any plant or part thereof. To the extent requested by Pioneer, Contractor shall gather and retain all pesticide records and make such records available to Pioneer upon request. If requested by Pioneer, Contractor will apply for OECO certification and/or phytosanitary inspection.

4.    Conditioning, Bagging and Treating Services.

Contractor shall provide Conditioning Services of the Contracted Amounts (other than the 2015 Contracted Amount) to meet the Specifications and shall provide the Bagging and Treating Services as may be requested by Pioneer with the final Alfalfa Varieties and any Purchased Units to be delivered in Unit sizes or such other bulk containers as specified by Pioneer. On or before June 30 in each CY-1, Pioneer shall provide a conditioning request to Contractor that provides its then-current request for the applicable Contracted Amount by variety in substantially the form set forth on Exhibit G . Pioneer shall have the right to amend such request thereafter to the extent that such Alfalfa Varieties have not yet been conditioned in the manner as originally set forth in any previous conditioning request. By way of example, Pioneer may request changing a previous request for bulk untreated or treated seed to fully conditioned, treated and bagged units, but may not request a change from fully conditioned, treated or untreated, bagged units to bulk conditioned units without an agreement in writing between the parties. As another example, Pioneer may request to change bulk untreated to bulk treated. Pioneer will furnish Contractor with bags, and tags as reasonably required by Contractor to perform such services at no charge. Fungicide and inoculants seed treatment will be applied by Contractor as specified by Pioneer in Exhibit D . Contractor shall provide a full accounting, by lot and batch, of the amount of bags and tags used by Contractor, the number of Units Conditioned, Bagged and Treated and an identification of which products and rates were used, together with the seed treatment testing results. Contractor agrees that it will utilize the tagging equipment specified by Pioneer during the term of this Agreement for all Contracted Amounts. Pioneer shall instruct Contractor as to the required text for certification tags and labeling. Prior to and after performing Conditioning Services, Contractor shall thoroughly clean all equipment and facilities in its control used in the planting, harvesting and Conditioning Services of the Alfalfa Varieties.

5.    Handling, Re-Bagging and Return Administration Services.

  1. Contractor agrees to provide, at its own expense, storage space and management for the Alfalfa Varieties and any Purchased Units. At all times during storage of the Alfalfa Varieties and any Purchased Units at any Contractor facility, Contractor agrees to provide insurance coverage, at its expense, insuring the risk of loss of Alfalfa Varieties and any Purchased Units in an amount equal to the costs to Pioneer for the services provided by Contractor under this Agreement for the Contracted Amount for the applicable calendar year, and to provide proof of such insurance to Pioneer upon request. Contractor will exercise due care for the safety, security and preservation of

- 9 -


    the Parent Alfalfa Varieties, Alfalfa Varieties, and any Purchased Units while the same are stored under this agreement, including due care for insect and rodent control, and with respect to preventing unauthorized access. Contractor shall not re-treat or re-bag any Parent Alfalfa Varieties provided to Contractor by Pioneer, unless directed by Pioneer. Contractor shall use reasonable efforts to avoid physical mixture of different products under its control or within its facilities during all aspects of Field Services, Conditioning Services, Bagging and Treating Services, and Handling Services. This effort shall include, but is not limited to, strict adherence to isolation standards, cleaning protocols of equipment, bins and trucks and adherence to operating procedures designed to avoid opportunity for mixes to occur. Contractor shall also provide all services necessary for storage of returned and never left plant Alfalfa Varieties and any Purchased Units, including but not limited to, providing sufficient space available for adequate storage of all carryover or unsold Alfalfa Varieties and any Purchased Units in accordance with Pioneer storage protocols.

  1. On or before October 1 in each CY-1 (other than CY-1 for calendar year 2015), Pioneer shall deliver a written delivery plan for the Contracted Amounts of Alfalfa Varieties for the applicable calendar year, which such delivery plan shall specify the applicable delivery point (hereinafter referred to as the "Delivery Point" ); provided , however , that (i) on or before January 31 in such calendar year, Pioneer shall be permitted to update such written delivery plan, and (ii) on no less than fifteen (15) days prior written notice given prior to the delivery of the applicable Contracted Amounts of Alfalfa Varieties, Pioneer shall be permitted to modify the applicable Delivery Point for such Contracted Amounts. The delivery plan for the 2015 Contracted Amount is set forth on Exhibit H . To the extent that the Delivery Point is not in Nampa, Idaho, Pioneer will reimburse Contractor for the costs of shipping and transportation incurred by Contractor within thirty (30) days following delivery of an invoice therefor (which invoice shall include reasonable supporting documentation). Contractor shall use its commercially reasonable efforts to deliver the Contracted Amounts in accordance with such written delivery plan to the specified Delivery Point; provided , however , that, except with respect to any Purchased Units, Pioneer shall not request delivery of, and Contractor shall not deliver, the Contracted Amounts for the applicable calendar year before November 1 in such CY-1 nor later than February 15 of such calendar year. All Contracted Amounts purchased hereunder shall be delivered DDP Delivery Point (Incoterms 2010). Title and risk of loss of the Contracted Amounts purchased hereunder shall pass from Contractor to Pioneer simultaneously with delivery thereof.
  2. Alfalfa Varieties and any Purchased Units that do not meet the Specifications shall not be used in any form or fashion offered for sale or distribution to any Person (including for any research purposes), and, at Pioneer's request, shall be discarded in a reasonable manner by Contractor at Contractor's expense. In the event that Units of Alfalfa Varieties or any Purchased Units delivered to Pioneer do not meet the Specifications, Pioneer shall notify Contractor and, for the avoidance of doubt, such Units shall not be included in the Contracted Amount for such calendar year. Any

- 10 -


    claim that Units of Alfalfa Varieties or any Purchased Units delivered to Pioneer do not meet the Specifications must be made within sixty (60) days after delivery thereof; provided , however , that as to a failure to meet Specifications that is not reasonably discoverable by visual inspection within such sixty (60) day period, any claim based thereon shall be deemed to be waived unless made no later than fifteen (15) days after Pioneer learns that such Units do not meet the Specifications. For the avoidance of doubt, a failure to meet Specifications that is not reasonably discoverable without opening any bag, ProBox or other container shall not be deemed to be reasonably discoverable by visual inspection. 

6.    Alfalfa Varieties Quality Testing.

Contractor shall as part of the services provided in accordance this Agreement and with procedures approved by Pioneer, (i) retain, at its own expense, representative samples of the Alfalfa Varieties produced hereunder (and any of the 2015 Contracted Amounts) for at least one (1) year, and (ii) furnish to Pioneer Alfalfa Varieties samples (and samples of any Purchased Units) for the purpose of quality testing requirements. Pioneer shall bear all other costs of such testing, including shipping the sample to a testing laboratory, if Pioneer so chooses to use a third party. If Contractor disputes the quality testing results obtained by or for Pioneer, then Contractor, at its own expense, may send a sample to a Pioneer-approved external quality lab to determine final quality. Contractor shall also provide Pioneer reasonable access during normal business hours to Contractor facilities for the purpose of inspection, audits or sampling of Alfalfa Varieties or any Purchased Units.

7.    Alfalfa Varieties Treatment Monitoring

Contractor shall use commercially reasonable efforts to ensure that all Alfalfa Varieties and any Purchased Units treatment application rates are one hundred percent (100%) of the application rates as set forth on Exhibit D, unless otherwise directed by Pioneer. Contractor shall provide Pioneer with reports of Alfalfa Varieties and any Purchased Units treatment usage and application verification tests and/or calculations at the end of each variety run.

8.    Regulatory Management.

Pioneer and Contractor shall, at their own costs, obtain all regulatory approvals necessary for the performance of their respective obligations under this Agreement.

9.    Payment.

  1. During the term of this Agreement, payment for the Contracted Amounts produced or with respect to which Contractor provides services under this Agreement shall be paid as follows, in each case at the applicable per Unit rates set forth on Exhibit I :

  1. On or before January 5, 2015, Pioneer shall pay to Contractor, with respect to calendar year 2015, two-thirds (2/3) of the total price for the 2015 Contracted

- 11 -


      Amount (exclusive of the Purchased Units). On or before November 15, CY-1, Pioneer shall pay to Contractor (a) with respect to the calendar year 2016, one third (1/3) of the total purchase price for the 2016 Contracted Amount; and (b) with respect to the calendar year 2017, one third (1/3) of the total purchase price for the 2017 Contracted Amount.

    1. On or before January 15, calendar year, Pioneer shall pay to Contractor (a) with respect to the 2016 calendar year, one third (1/3) of the total purchase price for the 2016 Contracted Amount, and (b) with respect to the 2017 calendar year, one third (1/3) of the total purchase price for the 2017 Contracted Amount.
    2. On or before April 15, calendar year, Pioneer shall pay to Contractor an amount that is equal to the purchase price for the Contracted Amounts delivered for the applicable calendar year in accordance with Section 5(B) above (such amount hereinafter referred to as the "Calendar Year Purchase Price" ), less (a) the Research Payment for the Research Year ending in such applicable calendar year (as such Research Payment and Research Year terms are defined in the Research Agreement) and (b) an amount equal to payments made pursuant to Section 9(B)(i) and/or Section 9(B)(ii) above; provided , however , that if in any calendar year the Research Payment for the Research Year ending in such calendar year plus the amount paid by Pioneer pursuant to Section 9(B)(i) and/or Section 9(B)(ii) is greater than the Calendar Year Purchase Price, then Contractor shall pay to Pioneer an amount equal to such difference not later than April 15, calendar year.

  1. Each of Contractor and Pioneer shall be responsible for (and remit as prescribed by the laws of any duly constituted taxing authority with jurisdiction) any sales, use, value added, goods and services, transfer or similar taxes, or any surcharges or escheat requirements, (collectively, the "Taxes" ) imposed upon such party or its Affiliates by the laws of such jurisdiction in effect at the services described herein are provided. For jurisdictions where the Taxes are imposed by statute upon Contractor, without statutory provision for recovery from Pioneer, Contractor shall bear the Taxes in full and without reimbursement. For jurisdictions where the Taxes are imposed by statute upon Pioneer, Contractor shall separately itemize the Taxes on each invoice for which the Taxes are applicable. In the alternative, Pioneer may timely provide Contractor with the required documentation to exempt Pioneer from the Taxes or to evidence Pioneer's authority to remit the Taxes directly.
  2. Pioneer shall withhold Taxes from payments to Contractor to the extent that such Taxes are required by any duly constituted taxing authority and in no event shall Pioneer be required to "gross up" or increase any payment to Contractor for such Taxes. Pioneer shall not be responsible for (i) any taxes based upon the assets, capital, equity, gross receipts, net income or taxable margin of Contractor, (ii) any penalties or interest resulting from Contractor's failure to timely pay any Taxes attributable to

- 12 -


    Contractor or, if such Taxes are imposed by applicable law upon Pioneer and remitted through Contractor, to timely notify Pioneer of such Taxes, (iii) the employer's share of any employment related taxes of any sort (including federal, state and provincial social security taxes and federal, state and provincial unemployment taxes for all employees engaged by Contractor, or (iv) any other taxes or charges applicable to Contractor's actions, facilities, employees and materials used in providing the services.

10.    Proprietary Information and Technology; Books and Records; Audits

The Parties acknowledge that any genetic, germplasm, production information and other intellectual property provided by Pioneer or its representatives to Contractor or its representatives is of a secret and confidential nature and that said information is to be furnished in the expectation and on the understanding, expressly acknowledged by Contractor, that it will maintain the information in strict confidence and not disclose any part of such information to unrelated third parties or otherwise use such information without the express prior written consent of Pioneer. Contractor shall take whatever reasonable steps are necessary to identify and control the information supplied or communicated by Pioneer. Except as set forth in this Section 10 , Pioneer and Contractor will jointly own all Improvements and each shall have a fully-paid up, world-wide right, including the right to sublicense, all Improvements. Notwithstanding anything herein to the contrary, Contractor hereby assigns and agrees to assign, transfer and set over unto Pioneer, Contractor's entire right and interest in and to any Improvements, including any related intellectual property rights, with respect to which Pioneer or its Affiliates is required to assign or transfer to [**] 13 and/or [**] 14 pursuant to the terms of any agreement by and among Pioneer and its Affiliates, on the one hand, and [**] 15 and/or [**] 16 or their respective Affiliates, on the other hand.

Contractor shall maintain, and shall cause each of its Affiliates and permitted subcontractors and sublicensees to maintain, complete and accurate records relating to the rights and obligations under this Agreement, which records shall contain sufficient information to permit Pioneer, [**] 17 and [**] 18 , together with their representatives (comprised of at least one person certified as a public accountant in at least one jurisdiction in the United States, selected from a nationally recognized third party accountant firm by the auditing party and reasonably acceptable to the party being audited) to confirm the accuracy of any reports, stewardship compliance, seed production efforts, seed quality levels, field trials, plantings, or any other

_________________________
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.

- 13 -


activities contemplated herein and/or payments developed or pursued by Contractor, its Affiliates or permitted subcontractors in alfalfa pursuant to the terms of this Agreement. Contractor shall retain and make available, and shall cause each of its Affiliates and permitted subcontractors and sublicensees to retain and make available, such records for at least four (4) years following the end of the calendar year to which they pertain, to such auditing party's representatives upon at least fifteen (15) days' advance written notice, for inspection during normal business hours, to verify any reports and payments made under this Agreement. Prior to any such inspection, such auditing party's representatives shall be required to sign a reasonable non-disclosure and non-use agreement with the party being audited to protect the confidential information of the party being audited

11.    Ownership of Alfalfa Varieties.

Delivery of Parent Alfalfa Varieties by Pioneer to Contractor to produce the Alfalfa Varieties under this Agreement and the creation by Contractor of the Alfalfa Varieties is not a sale, and ownership of Parent Alfalfa Varieties, Alfalfa Varieties and any Purchased Units shall at all times remain in Pioneer or its parent or Affiliates until the Alfalfa Varieties and any Purchased Units are ultimately sold by Pioneer or its parent or Affiliates. Contractor will use its reasonable efforts to prevent all access to the Parent Alfalfa Varieties, Alfalfa Varieties and any Purchased Units by Persons (other than Contractor's employees and agents) not authorized by Pioneer. Contractor shall not permit or allow for any liens or Encumbrances to be granted to, or placed on the Parent Alfalfa Varieties, Alfalfa Varieties or any Purchased Units in favor of any third party. Pioneer reserves the right to file U.C.C. Financing Statements or such other documents and to take such actions in connection therewith (subject to the terms and conditions set forth herein) as may be necessary under applicable Legal Requirements to preserve its interest in and assure its right to recover without lien or other encumbrance the Parent Alfalfa Varieties, Alfalfa Varieties and any Purchased Units in the care, custody, or control of Contractor, its employees, agents or assigns. Contractor, its employees, agents and assigns shall cooperate fully with Pioneer, including, but not limited to, signing any and all necessary and appropriate filings or other documents, to preserve the interests of Pioneer in such Parent Alfalfa Varieties, Alfalfa Varieties and any Purchased Units. All screenings/discard, ensilage from Conditioning Services belong to Pioneer and, upon Pioneer's request, all ensilage and discard shall be disposed of by Contractor in a reasonable manner in the name of Pioneer, and the proceeds of such disposal by Contractor shall, to the extent actually received by Contractor be forwarded to Pioneer, less the cost to Contractor of transportation expenses and reasonable, normal and customary grain marketing expenses. All foreign material shall be disposed of at Contractor's expense.

12.    Grower Contracts

  1. Pioneer shall assign to Contractor all of Pioneer's and its affiliates rights (the "Grower Contract Rights" ) under the grower contracts set forth on Exhibit J (the "Grower Contracts" ), but excluding, in all events, ownership of the seed grown pursuant to the Grower Contracts, and Contractor shall assume all of Pioneer's and its Affiliates obligations and Liabilities (the "Grower Obligations" ) under the Grower Contracts,

- 14 -


    including, without limitation, all amounts payable pursuant to the growers pursuant to such Grower Contracts (exclusive of amounts payable to growers for the 2015 Contracted Amount). Without limiting the foregoing, Pioneer and Contractor shall use their respective commercially reasonable efforts to (i) cooperate to obtain any Consents required for Pioneer to assign the Grower Contract Rights and Contractor to assume the Grower Obligations, and (ii) promptly execute, deliver and file, after good faith discussions, any and all agreements, and other documents that shall be reasonably necessary, under applicable Legal Requirements, for Pioneer to assign the Grower Contract Rights and Contractor to assume the Grower Obligations.

  1. Each new grower contract entered into by Contractor in accordance with this Agreement (the "New Grower Contracts" ) shall specify the name of the grower, and shall specify that any seed grown pursuant to the grower contract shall, at all times, be owned by Pioneer.

13.    No Assignment, Sale or Transfer.

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; provided , however , that (i) no consent shall be required if this Agreement is assigned by Pioneer to an Affiliate or in connection with the sale, transfer or assignment of all or substantially all of the party's business or assets and such Affiliate or purchaser, transferee or assignee shall have agreed, in a writing reasonably acceptable to Contractor, to be bound by the terms of this Agreement and to assume Pioneer's obligations hereunder, and (ii) no consent shall be required if this Agreement is assigned by Contractor to an Affiliate that is wholly-owned by Contractor if (a) such Affiliate shall have agreed, in a writing reasonably acceptable to Pioneer, to be bound by the terms of this Agreement and to assume Contractor's obligations hereunder, (b) Contractor shall have executed and delivered to Pioneer a guaranty in substantially the same form as the Guaranty (as defined in the APSA), pursuant to which Contractor shall guaranty all of the obligations of such wholly-owned Affiliate under this Agreement, and (c) [**] 19 and [**] 20 shall have given their prior written consent to such assignment and to the continuation of the transactions contemplated by this Agreement in accordance with the terms herein, in form and substance acceptable to Pioneer. Any attempted assignment in violation of this Section 13 shall be void.

14.    Confidentiality.

  1. For purposes of this Agreement, "Confidential Information" means (i) this Agreement, and the Exhibits hereto, (ii) the Stewardship Policies, and (iii) and any information disclosed by one party or its Affiliates or their representatives to the other party or its Affiliates or their representatives in connection with the transactions

_________________________
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.

- 15 -


    contemplated hereby and identified in writing as "confidential" or similar notation. Except as otherwise permitted by this Agreement, a party shall not, and shall cause its Affiliates and their respective employees, consultants, agents and attorneys not to, disclose the Confidential Information of the disclosing party or its Affiliates or their representatives to any third party or use the Confidential Information except for purposes of this Agreement and the transactions contemplated hereby without the prior written permission of the disclosing party for a period of five (5) years after the date of disclosure; provided, that the foregoing obligations of confidentiality and restricted use shall not extend to information that is: (i) already known at the time of its receipt by the receiving party, as shown by its prior written records; (ii) properly in the public domain through no fault of the receiving party; (iii) disclosed to the receiving party by a third party who may lawfully do so; or (iv) independently developed by or for the receiving party without use of the disclosing party's Confidential Information.

  1. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party required to be disclosed by applicable law or the rules or regulations of any U.S. or foreign securities exchange (if not subject to protection as confidential business information or otherwise protected by statute or common law privilege against disclosure); provided, however, that prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (i) give the other party written notice of such requirement prior to any such disclosure and (ii) allow the other party reasonable time to take such steps as to limit such disclosure. The parties shall cooperate with one another in the good faith making or assertion of any available defense or privilege relating to the disclosure of the Confidential Information.
  2. Notwithstanding the foregoing, a receiving party may disclose Confidential Information to its Affiliates, and their respective officers, directors, employees, consultants, agents and attorneys having a need to know for the purposes of consummating the transactions contemplated hereby and who are subject to a confidentiality agreement or obligation covering such information.
  3. Notwithstanding anything to the contrary contained in this Section 14 , each party agrees that it shall, and shall cause its Affiliates and their respective officers, directors, employees, consultants, agents and attorneys to, (i) take reasonable measures to protect the secrecy, and avoid disclosure, except as expressly permitted by this Section 14 , and unauthorized use, of the Confidential Information of the other party and its Affiliates and (ii) with respect to the Confidential Information of the other party and its Affiliates, take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care.

15.    Termination.

  1. This Agreement shall be effective as of the date first written above and, unless terminated as set forth below in Section 15(B) or Section 15(C) , shall continue until

- 16 -


    the earlier of (i) the date on which the parties shall execute and close under the Second APSA (as such term is defined in the APSA) or (ii) December 31, 2017.

  1. Notwithstanding the provisions of Section 15(A) :
    1. Either party shall have the right to terminate this Agreement by giving sixty (60) days written notice to the other party in the event of any material breach of this Agreement by the other party (which notice shall provide reasonable detail of such breach by the other party) and a failure to cure such breach within such sixty (60) day period;
    2. Either party shall have the right to terminate this Agreement immediately by giving written notice to the other party if the other party shall be adjudicated a bankrupt or make an arrangement for the benefit of creditors, or bankruptcy, insolvency, reorganization, arrangement, debt adjustment, receivership, liquidation or dissolution proceedings shall be instituted by or against the other party and, if instituted adversely, the other party consents to the same or admits in writing the material allegations thereof or said proceedings shall remain undismissed for ninety (90) days;
    3. Pioneer shall have the right to terminate this Agreement, with respect to any Alfalfa Variety for which [**] 21 and/or [**] 22 have granted to Pioneer a license to sell or distribute, immediately by giving written notice to Contractor if Pioneer loses (for any reason) the right to sell or distribute such Alfalfa Variety. At Pioneer's request, remaining Units of such Alfalfa Variety in Contractors control shall be discarded in a reasonable manner by Contractor at Contractor's expense;
    4. Either party shall have the right to terminate this Agreement by giving thirty (30) days written notice to the other party in the event of the termination of the Research Agreement; and
    5. Pioneer shall have the right to terminate this Agreement immediately upon delivery of written notice to Contractor if (a) Contractor breaches one or more of the Contractor Agreements, (b) Contractor ceases to be compliant with any of the Stewardship Policies, (c) prior to such time as Contractor shall have executed the amendment described in Section 2(D)(i)(a) above (and one or both of the third parties that are a party to such amendment shall have confirmed the same in writing to Pioneer), Contractor, its affiliates or any grower fails to perform their respective obligations under this Agreement in accordance with the terms, and subject to the conditions, set forth in Exhibit K ,

_________________________
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.

- 17 -


      or (d) Contractor, or its Affiliates or permitted subcontractors or sublicensees breaches or fails to comply with the obligations set forth in the second (2 nd ) paragraph of Section 10 , or in the event that Pioneer shall receive written notice from [**] 23 or [**] 24 stating that the events described in this Sections 15(B)(v)(a) , 15(B)(v)(b ), 15(B)(v)(c ) or 15(B)(v)(d) above shall have occurred.

  1. Change of Control Termination. Notwithstanding the provisions of Section 15(A) , a party may terminate this Agreement in the event of any one or more of the following (each, a "Change of Control "):
    1. a direct or indirect sale, exchange, or other transfer of more than fifty percent (50%) of the outstanding equity of the other party (whether by the issues or sale of equity, merger, consolidation or otherwise); or
    2. if an encumberer takes possession of all or a substantial part of the business used in the business of the such other party's performance of its obligations hereunder or if a distress or execution or any similar process is levied or enforced against such other party and remains unsatisfied for a period of sixty (60) calendar days.

    Each party that experiences a Change of Control shall provide written notice to the other party of such Change of Control. A party terminating the Agreement pursuant to this Section 15(C) shall deliver written notice of termination no later than ten (10) business days following such party's receipt of written notice of the applicable Change of Control; provided , however , that if written notice of any Change of Control is not timely provided to the other party, such party may nevertheless deliver written notice of termination.

  2. Effect of Termination . Upon the expiration or earlier giving of any notice of termination of this Agreement, (i) Contractor shall immediately deliver all remaining Parent Alfalfa Varieties, Alfalfa Varieties and any Purchased Units as directed by Pioneer and (ii) Contractor shall submit its final invoices for services provided hereunder within thirty (30) days of the completion of such delivery. Upon the expiration or earlier giving of any notice of termination of this Agreement, the parties shall cooperate to assign to Pioneer all New Grower Contracts and any Grower Contracts (to the extent then in effect), and Pioneer shall assume the obligations and Liabilities arising thereunder to the extent relating to and arising during time periods following assignment thereof, in all events solely to the extent relating to the Alfalfa Varieties; provided , however , that Contractor shall retain all New Grower Contracts and any Grower Contracts (to the extent then in effect), including all obligations and

_________________________
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.

- 18 -


    Liabilities arising thereunder, in the event that parties shall execute and close under the Second APSA (as such term is defined in the APSA); provided , further , that Pioneer shall have the right, but not the obligation, to accept the assignment of New Grower Contracts and any Grower Contracts (to the extent then in effect), and any obligations and Liabilities arising thereunder to the extent relating to and arising during time periods following assignment thereof, in all events solely to the extent relating to the Alfalfa Varieties, in the event that (i) this Agreement is terminated by Pioneer pursuant to Section 15(B)(iii) (if the loss of such rights to sell or distribute arise out of any breach of this Agreement or the Research Agreement by Contractor, its Affiliates or growers, as applicable), or (ii) this Agreement is terminated by either Party pursuant to Section 15(B) or Section 15(C) and, at the time of such termination, Pioneer has lost the right to sell or distribute any Alfalfa Variety for which [**] 25 and/or [**] 26 have granted to Pioneer a license to sell or distribute, which such loss of rights to sell or distribute arise out of any breach of this Agreement or the Research Agreement by Contractor, its Affiliates or growers, as applicable. Any unused packaging, labels, bags and tags remaining at the expiration or earlier termination of this Agreement shall be returned to Pioneer.

  1. Survival: In addition to any accrued rights, the provisions under Sections 10 , 11 , 14 , 15 , 16 , 17 , 18 , 20 , 21 , 22 and 23 (together with any other provisions of this Agreement necessary to give effect thereto) shall survive any expiration or termination of this Agreement and shall remain in full force and effect thereafter.
  2. Upon written notice from either party delivered at any time on or after August 1, 2017 and on or prior to August 31, 2017, the parties shall enter into good faith discussions, for up to ninety (90) days following the delivery of such written notice, regarding the continuation of the performance by Contractor of the Production Services for Pioneer on mutually agreeable terms and conditions in the event that (i) the parties shall not have consummated the transactions contemplated by the Second APSA (as such term is defined in the APSA) on or prior to December 29, 2017 and (ii) this Agreement shall expire in accordance with Section 15(A)(ii) ; provided , however , that, subject to the parties' compliance with their respective obligations to engage in such good faith discussions, neither Party shall be obligated to agree to the continuation of Contractor's performance of the Production Services; provided , further , that, during the course of any such discussions, no Party shall be required to disclose any information that is the subject of a non-use or confidentiality obligation to any third party; provided , further , that, to the extent that the consent of any third party shall be required for one or both parties to enter into such good faith discussions and such consent shall not have been provided in form and substance reasonably acceptable to both parties, the parties shall have no obligation to conduct such good faith discussions. This Section 15(F) shall be of no force or effect in the event of a termination of this 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.

- 19 -


16.    Governing Law; Disputes.

  1. Any dispute between the parties arising out of or relating to this Agreement or the transactions contemplated hereby, or the interpretation, validity or effectiveness of this Agreement, or any provision of this Agreement, in the event the parties fail to agree, shall, upon the written request of a party, be referred to designated senior management representatives of the parties for resolution. Such representatives shall promptly meet and, in good faith, attempt to resolve the controversy, claim or issues referred to them.
  2. If such representatives do not resolve the dispute within thirty (30) days after the dispute is referred to them, the dispute shall be settled by binding arbitration, in accordance with the Center for Public Resources (hereinafter referred to as "CPR" ) Rules for Non-Administered Arbitration of Business Disputes. For disputes in which the amount in controversy is less than or equal to U.S. $1,000,000, the parties shall mutually select one (1) neutral arbitrator who shall be qualified by experience and training to arbitrate commercial disputes. If the parties cannot agree on an arbitrator or if the amount in controversy exceeds U.S. $1,000,000, such dispute shall be settled by three (3) arbitrators who shall be qualified by experience and training to arbitrate commercial disputes, of whom each party involved in the arbitration shall appoint one, and the two appointees shall select the third, subject to meeting the qualifications for selection. If the parties have difficulty finding suitable arbitrators, the parties may seek assistance of CPR and its CPR Panels of Distinguished Neutrals. Judgment upon the award or other remedy rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be in Des Moines, Iowa. The arbitrators shall apply the substantive law of the State of Iowa, without regard to its conflicts of law principles, and their decision thereon shall be final and binding on the parties. Discovery shall be allowed in any form agreed to by the parties, provided that if the parties cannot agree as to a form of discovery (i) all discovery shall be 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 Pioneer and fifty percent (50%) by Contractor. 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 17 (as such address may be updated from time to time in accordance with the terms of Section 17 ). Any arbitration contemplated by this Section 16 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 17 (as such address may be updated from time to time in accordance with the terms of Section 17 ) and such

- 20 -


    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.

  1. All proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the parties to each other or to the arbitration panel in connection with this Section 16 shall be deemed to be in furtherance of settlement negotiation and shall be privileged and confidential, and shielded from production in other proceedings except as may be required by applicable law.
  2. This Agreement shall be governed by the substantive laws of the State of Iowa, without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Des Moines, Iowa shall have exclusive jurisdiction over any proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement or the transactions contemplated hereby. The parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 17 (as such address may be updated from time to time in accordance with the terms of Section 17 ).
  3. The parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the parties.
  4. Notwithstanding the foregoing, either party to this Agreement may seek, in the State or Federal courts in the City of Des Moines, Iowa, interim or provisional injunctive relief (or similar equitable relief) to maintain the status quo until such time as the designated senior management representatives of the parties resolve a dispute referred to them or an arbitration award or other remedy is entered in connection with such dispute pursuant to this Section 16 and, by doing so, such party does not waive any right or remedy available under this Agreement.

17.    Notices.

All notices, demands, requests, consents or other communications hereunder shall be in writing and shall be deemed sufficiently given if personally delivered, in which case such notice shall be deemed received upon delivery, or sent by prepaid air courier of internationally recognized repute, in which case such notice shall be deemed received upon receipt of confirmation of transmission of the telefax to the parties at the following address, or to such other address as may be designated by written notice given by either party to the other party:

- 21 -


If to Pioneer:

PIONEER HI-BRED INTERNATIONAL, INC.
Attention: General Counsel
DuPont Pioneer
7250 N.W. 62nd Ave.
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-4844

If to Contractor:

S&W SEED COMPANY
Attention: Chief Financial Officer
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax: (559) 255-5457

18.    Independent Contractor.

In performing this Agreement, Contractor is an independent contractor and is not the agent or representative of Pioneer for any purpose whatsoever. Neither Contractor nor Pioneer shall have any authority to contract in the name of the other party, or to create any liability on account of the other party, or to pledge the credit of the other party in any way or for any purpose. Neither party shall be responsible for any acts, defaults, liabilities or debts of the other party or any of its employees or representatives.

19.    Force Majeure.

The failure or delay of either party to perform any obligation under this Agreement by reason of acts of God, adverse weather conditions (either from the perspective of agricultural production of seed or its shipment by sea/air), epidemics, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes or disturbances, fire, transportation contingencies, shortage of facilities, fuel, energy, labor or materials, or laws, regulations, acts or orders of any governmental agency or official thereof, other catastrophes, or any other circumstance beyond its reasonable control ( "Force Majeure" ) shall not be deemed to be a breach of this Agreement so long as the party so prevented from complying with this Agreement shall have used its commercially reasonable efforts to avoid such Force Majeure or to ameliorate its effects, and shall continue to take all actions within its power to comply as fully as possible with the terms of this Agreement. In the event of any such default or breach, performance of the obligations shall be deferred until the Force Majeure ceases.

20.    Warranties

  1. Each party represents and warrants to the other party that (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder, and (ii) its execution, delivery and performance of this Agreement will not

- 22 -


    result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any license, contract, agreement or other instrument or obligation to which it or any of its Affiliates is a party or by which it or any of its properties or assets may be bound.

  1. Pioneer represents and warrants that Contractors' performance of the Production Services, to the extent performed strictly in accordance with the terms of this Agreement (including, without limitation, in accordance with all Stewardship Policies), as contemplated under this Agreement will not infringe any intellectual property rights under any agreement to which Pioneer is a party.
  2. From and after such time as Contractor shall have executed the amendment described in Section 2(D)(i)(a) above (and one or both of the third parties that are a party to such amendment shall have confirmed the same in writing to Pioneer), Contractor represents and warrants that it has, and will maintain in full force and effect for the remaining term of this Agreement, one or more agreements (the "Contractor Agreements" ) with [**] 27 and/or [**] 28 , pursuant to which Contractor may perform the Production Services contemplated by this Agreement, and that all such Contractor Agreements are valid and binding upon and enforceable against the parties thereto and in full force and effect, without the right of any party to terminate such Contract Agreements as a result of the transactions contemplated hereby without penalty, acceleration of maturity of any rights or obligations or other adverse consequences therewith.  Contractor further represents and warrants that (i) as of such time as Contractor shall execute the amendment described in Section 2(D)(i)(a) above (and one or both of the third parties that are a party to such amendment shall have confirmed the same in writing to Pioneer), Contractor is not in material default under any such Contractor Agreement, nor to Contractor's knowledge has any event or circumstance occurred that, without notice or lapse of time or both, would constitute any event of default by Contractor thereunder and (ii) Contractor's performance of the Production Services as contemplated under this Agreement will not infringe any intellectual property rights under any agreement to which Contractor is a party.
  3. EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION, IMPLIED CONDITIONS OR WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.

_________________________
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.

- 23 -


21.    Indemnification

  1. Contractor will defend, indemnify, protect and hold harmless Pioneer, its Affiliates and their respective executives, officers, directors, stockholders, representatives, employees, agents (including, without limitation Dealers), parent companies, and subsidiaries from and against any and all demands, actions, recalls, claims, obligations, causes of action, complaints, lawsuits and legal or other similar proceedings ( "Claims" ) and any judgments, penalties, fines, settlements, losses, liabilities, damages and costs (including attorney's fees) resulting from any Claims to the extent Claims arise out of or are related (i) a breach by Contractor or its Affiliates of this Agreement (including, without limitation, any failure by Contractor, its Affiliates or any grower to perform or comply with the Stewardship Policies or with, for as long as they remain applicable to Contractor under Section 2(D)(ii) above, the terms and conditions set forth in Exhibit K ), (ii) the failure to assume the Grower Obligations, or (iii) a breach by Contractor or its Affiliates of any Contractor Agreement.
  2. Pioneer shall defend, indemnify, protect and hold harmless Contractor, its Affiliates and their respective executives, officers, directors, stockholders, representatives, employees, agents, parent companies, and subsidiaries from and against any and all Claims and any judgments, penalties, fines, settlements, losses, liabilities, damages and costs (including attorney's fees) resulting from any Claims to the extent such Claims arise out of or are related to a breach by Pioneer or its Affiliates of this Agreement.
  3. THE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY 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), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OTHER THAN FOR SUCH DAMAGES OR LOST PROFITS ACTUALLY INCURRED BY SUCH PARTY PURSUANT TO A THIRD-PARTY CLAIM. NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE AMOUNT OF THE AMOUNTS PAID BY OR TO IT HEREUNDER DURING THE TWELVE MONTH PERIOD PROCEEDING THE DATE SUCH CLAIM, DEMAND OR ACTION

- 24 -


    ARISES (OR IN THE CASE OF CLAIMS, DEMANDS OR ACTIONS ARISING PRIOR TO THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, DURING THE TWELVE MONTH PERIOD FOLLOWING THE EFFECTIVE DATE), PROVIDED THAT THE FOREGOING LIMITATION ON DAMAGES SHALL NOT APPLY TO (I) LOSSES OR DAMAGES ACTUALLY INCURRED BY SUCH PARTY PURSUANT TO A THIRD-PARTY CLAIM (INCLUDING, WITHOUT LIMITATION, ANY CLAIM BY [**] 29 OR [**] 30 ), (II) CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY, OR (III) LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO A BREACH OF SECTION 2(C) OR SECTION 9 .

22.    Severability.

If any provision hereof is found invalid or unenforceable pursuant to any executive, legislative, judicial or other decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, unless either party deems the invalid or unenforceable provisions to be essential to this Agreement, in which case such party may terminate this Agreement, effective immediately, upon written notice to the other party.

23.    Entire Agreement.

This writing (together with the APSA and the Transaction Documents, as such term is defined in the APSA) contains the entire agreement between the Parties superseding any prior agreements dealing with the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing, signed by the parties.

24.    Amendment of Exhibits.

  1. Pioneer may supplement, amend or update Exhibit A at any time, with prior written notice to Contractor, to add varieties of alfalfa seed developed under the Research Agreement, other than varieties containing the [**] 31 trait. Pioneer may supplement, amend or update Exhibit D at any time, with prior written notice to Contractor; provided , however , that unless such changes or updates are (i) implemented pursuant to Section 24(B) below, (ii) required by [**] 32 or [**] 33 or (iii) otherwise required under applicable Legal Requirements, then Pioneer shall reimburse Contractor for the

_________________________
29 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
30 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
31 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
32 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
33 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 25 -


    incremental costs incurred by Contractor with respect to such changes or updates promptly following the delivery of an invoice therefor, together with reasonable supporting documentation. Pioneer may supplement, amend or update Exhibit E at any time, with prior written notice to Contractor, provided , however , that unless such changes or updates are (i) implemented pursuant to Section 24(B) below, (ii) required by [**] 34 or [**] 35 or (iii) otherwise required under applicable Legal Requirements, then Pioneer shall reimburse Contractor for the incremental costs incurred by Contractor with respect to such changes or updates promptly following the delivery of an invoice therefor, together with reasonable supporting documentation.

  1. In connection with, and concurrently with the determination of the Contracted Amount under Section 2 with respect to production of Alfalfa Varieties in the next year, Pioneer and Contractor shall also agree in good faith on any amendments to Exhibit D (other than those amendments or updates described in Section 24(A) above) and Exhibit E (other than those amendments or updates described in Section 24(A) above) that shall apply to the next year's production of Alfalfa Varieties.

25.    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]

_________________________
34 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
35 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

- 26 -


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

S&W Seed Company
(Contractor)

 

Pioneer Hi-Bred International
(Pioneer)

By ___________________________

By ______________________________

Name:

Name:

Title:

Title:

   

EXHIBIT 10.3

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

RESEARCH AGREEMENT

This Research Agreement (including all Exhibits hereto, as amended, modified or supplemented from time to time in accordance with its terms, the "Agreement" ), is made and entered into on December 31, 2014 by and between Pioneer Hi-Bred International, Inc., a corporation organized and existing under the laws of the State of Iowa, with its principal place of business at 7100 NW 62 nd Ave., P.O. Box 1014, Johnston, Iowa 50131, hereinafter referred to as "Pioneer" , and S&W Seed Company, a corporation organized and existing under the laws of Nevada, with its principal place of business at 25552 South Butte Avenue, Five Points, California 93624, hereinafter referred to as "Researcher" (Researcher and Pioneer, each individually a "Party" , and together the "Parties" ).

RECITALS

WHEREAS , Pioneer and Researcher are parties to that certain Asset Purchase and Sale Agreement, dated as of December 19, 2014 (the "APSA" );

WHEREAS , Researcher has expertise and the facilities available to carry out the evaluation, research and development of certain varieties of alfalfa seed;

WHEREAS , Pioneer and Researcher desire that Researcher perform and provide assistance in the evaluation, research and development of certain varieties of alfalfa seed;

WHEREAS , Researcher is willing to conduct such evaluation, research and development on a fee for services basis; and

WHEREAS , capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the APSA.

NOW THEREFORE , in consideration of the premises and of the mutual covenants herein contained, it is hereby agreed as follows:

SECTION 1 - DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings specified or referred to in this Section 1 :

1.1   "Agreement" - is defined in the preamble.

1.2   "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. Notwithstanding the foregoing, for purposes of this Agreement no Pioneer Competitor or any entity in which a Pioneer Competitor or any of their respective Affiliates has an equity interest greater than five percent (5%) will be deemed an Affiliate of Researcher and no successors in interest to the agricultural related lines of business of a Pioneer Competitor or any of their respective Affiliates will be deemed an Affiliate of Researcher.

1.3   "APSA" - is defined in the recitals.

1.4   "Change of Control " - is defined in Section 8.3 .

1.5   "Claims" - is defined in Section 6.1 .

1.6   "Confidential Information" - is defined in Section 4.1 .

1.7   "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.

1.8   "Distribution Agreement" - means the Alfalfa Distribution Agreement by and between Pioneer and Researcher dated of even date herewith.

1.9   "DuPont" - is defined in Section 11.4(d) .

1.10   "DuPont Principles" - is defined in Section 11.4 .

1.11   "[**] 1 " - means [**] 2 or its Affiliates.

1.12   "Force Majeure" - is defined in Section 11.3 .

1.13   "Government Agency Permit(s)" - mean permit(s) issued by Governmental Bodies for the oversight of Plant Materials. Government Agency Permits can include, but are not limited to, the following: Canadian Food Inspection Agency permits, United States Department of Agriculture permits, Environmental Protection Agency permits, Experimental Use Permits and any applicable Animal and Plant Health Inspection Service permits needed for the performance of the Services.

_________________________
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.

2


1.14   "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.

1.15   "IT Transition Services Agreement" - means the Information Technology Transition Services Agreement by and between Pioneer and Researcher dated of even date herewith.

1.16   "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.

1.17   "[**] 3 " - means [**] 4 or its Affiliates.

1.18   "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.

1.19   "Party" or "Parties" - is defined in the preamble.

1.20   "Person" - means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union or other entity or governmental body.

1.21   "Pioneer" - is defined in the preamble.

1.22   "Pioneer Competitor" - means [**] 5 , or any of their respective Affiliates (or successors in interest to their agricultural-related lines of business).

1.23   "Plant Materials" - means the Seed, and all vegetative and reproductive material from the Seed, including, without limitation, plants and their progeny, stems, leaves, pollen, roots, embryos, pods, seed and any unplanted Seed.

1.24   "Production Agreement" - means the Contract Alfalfa Production Services Agreement by and between Pioneer and Researcher dated of even date herewith.

1.25   "Proprietary Information" - means all samples, information and materials, intellectual property, trade secrets provided or disclosed by or on behalf of Pioneer, [**] 6 or [**] 7 , or their respective Affiliates or representatives to Researcher in connection with the Services performed under this Agreement. Proprietary Information includes, but is not limited to, Plant Materials, notebooks, nucleic acids, probes, markers, proteins, compounds, formulations, chemistries, products, product descriptions, code names,

_________________________
3 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
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.

3


observations, measurements, plans, reagents, equipment, electronic media, prototypes, organisms, antibodies, cells, cultivars, lines, germplasm, expression vectors, DNA, RNA, hybrids, microorganisms, plants, propagating materials developed from germplasm, tissues, and any replication, derivative or modification of any such information or materials.

1.26   "Protocol" or "Protocols" - mean specific details and related information regarding the Services that are to be performed by Researcher under this Agreement, as set forth on Exhibit A , which Protocols Pioneer may supplement, amend or update at any time, in accordance with Section 3.3 . Copies of such Protocols will be provided to Researcher by a Pioneer designated representative under separate cover.

1.27   "Research" - means evaluation, research and development activities, including, without limitation, trait validation, trait introgression, greenhouse and field evaluation and crossing.

1.28   "Research Payment" - means - is defined in Section 2.1 .

1.29   "Research Plan" - is defined in Section 3.2 .

1.30   "Research Year" - means, as applicable, (i) the period beginning on January 1, 2015 and ending on February 28, 2015, or (ii) thereafter, each period beginning on March 1 of a year and ending on the last calendar day of February of the immediately following year.

1.31   "Researcher" - is defined in the preamble.

1.32   "Results" - means all observational and raw data, information and material generated by or arising out of the performance of the Services performed by Researcher hereunder; provided that the Results shall not include any observational and raw data, information or material developed by Researcher or its Affiliate outside of its or their performance of the Services and without the use of any Seed, Plant Materials, Proprietary Information, or any other Confidential Information disclosed by Pioneer, its Affiliates or their representatives, in all events solely to the extent that such Results are not generated by or arising out of any breach by Researcher of this Agreement.

1.33   "Seed" - means all alfalfa seed tracing to breeding activities with [**] 8 and [**] 9 , including, without limitation, genetically modified seed, provided by Pioneer, [**] 10 or [**] 11 , or their respective Affiliates, for the performance of the Services.

1.34   "Services" - is defined in Section 3.1 .

_________________________
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.

4


1.35   "Stewardship Guidelines" - means the stewardship requirements documents, technology use agreements and/or stewardship product use guides or other documents, copies of which are attached hereto as Exhibit B and which Stewardship Guidelines Pioneer may supplement, amend or update at any time, in accordance with Section 3.3 . In the event of conflict between the Stewardship Guidelines and the terms of this Agreement, the terms of this Agreement shall control.

1.36   "Taxes" - is defined in Section 2.2 .

SECTION 2 - RESEARCH PAYMENTS

2.1   On or before (a) March 15 of 2015, (b) on March 15 of each subsequent calendar year during the term of this Agreement, and (c) within thirty (30) days following the expiration or earlier termination of this Agreement, Researcher shall deliver to Pioneer a properly prepared and accurate invoice (with reasonable supporting documentation) for the amount to be paid by Pioneer (each, a "Research Payment" ) for the Services provided by Researcher during the Research Year ending in such calendar year or, in the event of the expiration or earlier termination of this Agreement, for the remaining outstanding amounts due thereon, as applicable, which amount for each such Research Year or portion thereof shall be calculated in accordance with Exhibit C . Payment terms for the Services provided hereunder shall be net fifteen (15) days from Pioneer's receipt of the properly prepared and accurate invoice (with reasonable supporting documentation). All payments by Pioneer pursuant to this Agreement may be offset by Pioneer in accordance with the Production Agreement.

2.2   Each of Researcher and Pioneer shall be responsible for (and remit as prescribed by the laws of any duly constituted taxing authority with jurisdiction) any sales, use, value added, goods and services, transfer or similar taxes, or any surcharges or escheat requirements, (collectively, the "Taxes" ) imposed upon such Party or its Affiliates by the laws of such jurisdiction in effect at the services described herein are provided. For jurisdictions where the Taxes are imposed by statute upon Researcher, without statutory provision for recovery from Pioneer, Researcher shall bear the Taxes in full and without reimbursement. For jurisdictions where the Taxes are imposed by statute upon Pioneer, Researcher shall separately itemize the Taxes on each invoice for which the Taxes are applicable. In the alternative, Pioneer may timely provide Researcher with the required documentation to exempt Pioneer from the Taxes or to evidence Pioneer's authority to remit the Taxes directly.

2.3   Pioneer shall withhold Taxes from payments to Researcher to the extent that such Taxes are required by any duly constituted taxing authority and in no event shall Pioneer be required to "gross up" or increase any payment to Researcher for such Taxes. Pioneer shall not be responsible for (i) any taxes based upon the assets, capital, equity, gross receipts, net income or taxable margin of Researcher or its Affiliates, (ii) any penalties or interest resulting from Researcher's or its Affiliates' failure to timely pay any Taxes attributable to Researcher or, if such Taxes are imposed by applicable law upon Pioneer and remitted through Researcher, to timely notify Pioneer of such Taxes, (iii) the

5


employer's share of any employment related taxes of any sort (including federal, state and provincial social security taxes and federal, state and provincial unemployment taxes for all employees engaged by Researcher or its Affiliates, or (iv) any other taxes or charges applicable to Researcher's or its Affiliates' actions, facilities, employees and materials used in providing the services.

2.4   The Parties acknowledge and agree that the Full Costs (as defined in Exhibit C , but excluding the 10% markup contemplated thereon) shall be deemed to be commercial expenditures on research and development by Researcher and its Affiliates for purposes of Section 2.1.2.3 of the Distribution Agreement.

SECTION 3 - PERFORMANCE OF THE SERVICES

3.1   Researcher shall, or shall cause its Affiliates to, perform the following Research activities (together, the "Services" ):

  1. the Research activities set forth on Exhibit D ;
  2. until July 31, 2015, the Research activities set forth on Exhibit E ; and
  3. on and after August 1, 2015, the Research activities set forth in the applicable Research Plan.

3.2   On or before September 1, 2015, Researcher shall prepare a proposed written plan of breeding activities, crossing activities and other Research activities to be conducted by Researcher from October 1, 2015 until September 30, 2016, and on or before September 1, 2016, Researcher shall prepare a proposed written plan of breeding activities, crossing activities and other Research activities to be conducted by Researcher from October 1, 2016 until December 31, 2017 (each, a "Research Plan" ). No later than September 30 of each of 2015 and 2016, as applicable, Pioneer shall (i) notify Researcher that it approves of the applicable Research Plan, or (ii) provide to Researcher any proposed revisions to such Research Plan. If within such time period Pioneer fails to notify Researcher of its approval of the Research Plan or fails to provide proposed revisions to the Research Plan, the Research Plan shall be deemed accepted. If within such time period Pioneer provides to Researcher proposed revisions to the Research Plan and Researcher does not accept such revisions, then Pioneer and Researcher shall negotiate in good faith to reach agreement on an acceptable Research Plan, and, until such time as Pioneer and Researcher reach agreement, the immediately preceding Research Plan, if applicable, shall remain in effect; provided , however , that Pioneer may specify breeding activities, crossing activities and/or other Research activities that should cease until such time as Pioneer and Researcher reach agreement. If Pioneer and Researcher are unable reach agreement on acceptable revisions to the Research Plan within thirty (30) days, then either Pioneer or Researcher may submit such dispute for resolution in accordance with the procedures set forth in Section 10 . On or around January 15, 2016 and January 15, 2017, Pioneer and Researcher shall meet to review progress under the then-current Research Plan (including costs incurred by Researcher in performing the Research

6


obligations according to such Research Plan) and to discuss any mutually agreeable proposed changes to subsequent Research Plans.

3.3   Pioneer shall provide to Researcher Protocols and Stewardship Guidelines required to perform the Services. Pioneer may supplement, amend or update the Protocols and Stewardship Guidelines (i) at any time in its reasonable discretion, or (ii) at any time if required by [**] 12 or [**] 13 or otherwise required under applicable Legal Requirements, in each case with prior notice to Researcher. Pioneer shall consider in good faith supplements, amendments or updates to the Protocols and Stewardship Guidelines recommended by Researcher. The Protocols and Stewardship Guidelines, as the same may be modified from time to time, will form an integral part of the Agreement and are incorporated herein by reference. Researcher shall, and shall cause its Affiliates to, cooperate reasonably with Pioneer in any efforts by Pioneer to obtain any Government Agency Permit(s) and Consents required for the performance of the Services.

3.4   Researcher shall perform the Services in strict accordance with (i) Exhibit D , (ii) the applicable Protocols, Research Plan, and Stewardship Guidelines, and (iii) all applicable Legal Requirements. Researcher shall use customary standards of skill, care and diligence in the performance of the Services. Consistent with Section 4 , Researcher shall not use Seed, Proprietary Information, Plant Materials, Protocols, Research Plans, Stewardship Guidelines or any other materials provided to Researcher under the terms of this Agreement for any purpose other than in performing the Services in accordance with the terms and subject to the conditions set forth in this Agreement.

3.5   Researcher agrees to provide the staff, supplies and facilities necessary for the performance of the Services unless otherwise indicated by Pioneer. Researcher agrees to perform the Services at Researcher's Nampa, ID site, Researcher's Arlington, WI site or the Connell, WA site that is the subject of the Ground Lease among the parties dated of the even date herewith unless otherwise expressly required by the terms of Exhibit D . Researcher shall cause its applicable employees to attend any training that [**] 14 or [**] 15 deem necessary or advisable in furtherance of the performance of the Services.

3.6   If Researcher performs any of the Services on Pioneer's and/or Pioneer's Affiliates' property, Researcher, and any permitted subcontractor of Researcher, shall be bound by all rules and internal policies of Pioneer and Pioneer's Affiliates, including certain safety provisions that pertain to the use of Pioneer's and/or Pioneer's Affiliates' premises. Researcher may also be subject to Pioneer's and/or Pioneer's Affiliates' screening policy unless Pioneer and/or Pioneer's Affiliates waives such requirement. Except for injury or damage caused solely by the gross negligence of Pioneer, Researcher agrees to the full extent allowed by law that Pioneer and Pioneer's Affiliates shall not be liable under any circumstances for any injury or damage done to or suffered by any Researcher employee, or by any permitted subcontractor of Researcher, while on Pioneer's and/or Pioneer's

_________________________
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.

7


Affiliates' premises, and Researcher shall assume all risk of such injury or damage while on Pioneer's and/or Pioneer's Affiliates' premises.

3.7   Researcher shall not subcontract the performance of the Services without the prior written consent of Pioneer. Should Researcher receive written approval from Pioneer to use a specific subcontractor for the performance of the Services, such third party subcontractor shall agree in writing to terms and conditions at least as strict as those contained in this Agreement regarding such Services, in addition to any other documentation or agreements required by Pioneer. For each Pioneer approved subcontractor used, Researcher shall promptly fax or e-mail a complete, signed copy of such agreement to Pioneer's address set forth in Section 12 . Researcher shall be responsible for any and all acts or omissions of such subcontractor in the performance of the Services. Researcher shall ensure that such subcontractor adheres to the rules and regulations identified in the Protocols and Stewardship Guidelines, in strict accordance with all applicable Legal Requirements. Such subcontractors will be employees, independent contractors or agents of Researcher, and shall not be employees, independent contractors, or agents of Pioneer. Approval of a specific subcontractor creates no obligation for Pioneer to approve such subcontractor for future performance of the Services or agreements. Upon Pioneer's request, Researcher shall ship representative samples specified by Pioneer to third-party testing laboratories specified by Pioneer.

3.8   Pioneer, may, at its sole discretion, require that Plant Materials and Seed held by Researcher be immediately destroyed in a manner consistent with the Protocols and Stewardship Guidelines as well as any applicable Legal Requirements. At times mutually agreed to by the Parties or upon reasonable notice by Pioneer, Pioneer or any third-party designated by Pioneer, shall have the right to enter the land on which the Services are being conducted for the purpose of harvesting and removing the Plant Materials, monitoring the progress of the Services, inspecting the land on which the Services are being conducted, inspecting all documentation maintained by Researcher for such Services, and conducting any regulatory and environmental compliance activities Pioneer deems necessary, in its sole discretion.

3.9   In the event Researcher has any questions or concerns about the Services, Researcher shall immediately contact Pioneer's designated representative listed in the Protocols and/or Stewardship Guidelines, or any other designated representative Pioneer may identify from time to time for that purpose.

3.10   Upon completion of the Services, Researcher will cease use of the Proprietary Information and Plant Materials and will return or dispose of the Plant Materials in accordance with the applicable Protocols, Research Plan, and Stewardship Guidelines.

3.11   Subject to the terms of this Agreement and the IT Transition Services Agreement, on and after the date of this Agreement, Researcher, at its sole cost and expense, shall, and shall cause its applicable Affiliates to, use commercially reasonable efforts to obtain all information technology systems and support (whether hardware, software or otherwise) reasonably required by Researcher to perform its obligations under this Agreement upon

8


the expiration or earlier termination of the applicable Services (as the term Services is defined in the IT Transition Services Agreement), which systems and support include, without limitation, any reasonably required systems and support provided by Pioneer pursuant to the IT Transition Services Agreement.  On and after the date of this Agreement until April 1, 2015, Pioneer shall cooperate with Researcher in Researcher's efforts to obtain such systems and support; provided , however , that in no event shall Researcher be entitled to extend any Service Term (as such term is defined in the IT Transition Services Agreement) without the prior written consent of Pioneer, which consent may be withheld by Pioneer for any or no reason in its sole and absolute discretion.

SECTION 4 - CONFIDENTIALITY AND NON-USE

4.1   For purposes of this Agreement, "Confidential Information" means (i) this Agreement and the Exhibits hereto, (ii) the Proprietary Information, (iii) the Protocols, (iv) the Research Plans, (v) the Stewardship Guidelines, and (vi) any other information disclosed by one Party or its Affiliates or their representatives to the other Party or its Affiliates or their representatives in connection with the transactions contemplated hereby and identified in writing as "confidential" or similar notation. Except as otherwise permitted by this Agreement, a Party shall not, and shall cause its Affiliates and their respective employees, consultants, agents and attorneys not to, disclose the Confidential Information of the disclosing party or its Affiliates or their representatives to any third party or use the Confidential Information except for purposes of this Agreement and the transactions contemplated hereby without the prior written permission of the disclosing party for a period of ten (10) years after the date of disclosure; provided , that the foregoing obligations of confidentiality and restricted use shall not extend to information that is: (i) already known at the time of its receipt by the receiving party, as shown by its prior written records; (ii) properly in the public domain through no fault of the receiving party; (iii) disclosed to the receiving party by a third party who may lawfully do so; or (iv) independently developed by or for the receiving party without use of the disclosing party's Confidential Information. Researcher agrees to protect the Proprietary Information from access by unauthorized third parties; provided , that, Pioneer shall not be deemed an unauthorized third party for purposes of this Agreement.

4.2   Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party required to be disclosed by applicable Legal Requirements or the rules or regulations of any U.S. or foreign securities exchange (if not subject to protection as confidential business information or otherwise protected by statute or common law privilege against disclosure); provided , however , that prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (i) give the other party written notice of such requirement prior to any such disclosure and (ii) allow the other party reasonable time to take such steps as to limit such disclosure. The parties shall cooperate with one another in the good faith making or assertion of any available defense or privilege relating to the disclosure of the Confidential Information.

9


4.3   Notwithstanding the foregoing, a receiving party may disclose Confidential Information to its Affiliates, and their respective officers, directors, employees, consultants, agents and attorneys having a need to know for the purposes of consummating the transactions contemplated hereby and who are subject to a confidentiality agreement or obligation covering such information.

4.4   Notwithstanding anything to the contrary contained in this Section 4 , each Party agrees that it shall, and shall cause its Affiliates and their respective officers, directors, employees, consultants, agents and attorneys to, (i) take reasonable measures to protect the secrecy, and avoid disclosure, except as expressly permitted by this Section 4 , and unauthorized use, of the Confidential Information of the other Party and its Affiliates and (ii) with respect to the Confidential Information of the other Party and its Affiliates, take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care.

4.5   Unless Pioneer gives its consent in writing, Researcher will not perform the following actions (i) except in accordance with the Research obligations set forth on Exhibit E or the then-current Research Plan (and then, only in accordance with the applicable Protocols and Stewardship Guidelines), or (ii) unless otherwise expressly required by Exhibit D (and then, only in accordance with the applicable Protocols and Stewardship Guidelines):

  1. propagate or increase Plant Materials except as specifically provided in the Protocol;
  2. breed with or make crosses or backcrosses with Plant Materials;
  3. multiply or genetically combine Plant Materials with any other plant germplasm or seed treatments;
  4. subject any Plant Materials to laboratory techniques (including mutagenesis) to product new variants;
  5. characterize, analyze, isolate, sequence or otherwise reverse engineer any genetic, protein, or metabolic components of Plant Materials including, but not limited to, nucleic acid analysis, proteomics or metabolomics;
  6. sequence, analyze, isolate, modify or cause to be sequenced, analyzed, isolated or modified the Plant Materials, and/or any seed treatment compounds found in the Seed;
  7. conduct genetic analysis on the Plant Materials, including, without limitation, molecularly characterize, isolate or modify or use any genetic component of the Plant Materials;
  8. chemically or genetically modify the Plant Materials or otherwise alter its composition;
  9. conduct biotechnology processes including, but not limited, to tissue culturing, mutagenesis or transformation with Plant Materials; or
  10. introduce additional transgenes into the Plant Materials.

4.6   Unless in accordance with the Transaction Documents or as authorized under any other agreement between the Parties, Researcher shall prevent Plant Materials or components thereof from entering any commercial grain stream, food, food products, feed or feed

10


products and shall not sell, give, transfer or distribute Proprietary Information, Plant Materials and/or Results to any third party for any reason in accordance with Section 4.1 . Proprietary Information, Plant Materials and/or Results will be used solely by Researcher for its performance of the Services. Additionally, Researcher shall use Proprietary Information and Plant Materials and/or Results in compliance with the Stewardship Guidelines as well as all applicable Legal Requirements, including without limitation, those pertaining to: (i) the transport of Proprietary Information; (ii) the protection of the environment; (iii) the handling of Plant Materials; (v) the performance of the Services; and (vi) the disposition of Plant Materials remaining after the performance of the Service.

4.7   Researcher shall not export, directly or indirectly, any Proprietary Information to any country for which the United States government or any agency thereof at the time of export requires an export license or other approval, without first obtaining Pioneer's explicit written permission and securing such license or approval, when required by applicable United States Legal Requirements. Accordingly, Researcher shall not release Plant Materials in any manner that would result in the export outside the United States without first obtaining Pioneer's written permission.

4.8   Researcher shall not, without Pioneer's prior written consent, release, transport, import, export, sell or otherwise transfer Proprietary Information, including, but not limited to, the Plant Materials or the Results, outside the country in which the applicable Services are undertaken or in conflict with applicable Government Agency Permits. Researcher shall not undertake nor permit any third party to undertake any research, development or breeding activity of any nature on Plant Materials other than as expressly permitted by Pioneer.

SECTION 5 - RIGHTS

5.1   Results shall be supplied to Pioneer, or to any other entity as specified by Pioneer, promptly on completion of the corresponding Services, and/or as otherwise agreed in the Protocols. Pioneer shall have the right to (i) use and disclose the Results for any research or commercial purpose and (ii) use, disclose and assign the Results pursuant to the terms of the Agreements specified in Exhibit F .

5.2   RESEARCHER SHALL NOT PLACE ANY LIEN OR CLAIM AGAINST THE PLANT MATERIALS OR RESULTS AND SHALL NOT ALLOW ANY LIEN OR CLAIM TO BE PLACED THEREON BY ANY THIRD PARTY. IN THE EVENT OF A BREACH OF THIS SECTION 5.2 , RESEARCHER SHALL IMMEDIATELY (I) NOTIFY PIONEER OF SUCH LIEN OF CLAIM AND (II) REMEDY SUCH LIEN OR CLAIM.

5.3   Researcher shall not file any patent application(s) related to the Results and Plant Materials or any genetic material contained therein nor uses thereof. For the purpose of protecting Pioneer's, [**] 16 or [**] 17 interest in the Proprietary Information and/or

_________________________
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.

11


Pioneer's, [**] 18 or [**] 19 interest in the Results, if, (i) solely as a result of the Services, Researcher conceives, makes or develops any inventions or discovery (patentable or not) during the term of this Agreement in connection with Researcher's performance of its obligations under this Agreement, or (ii) required pursuant to the terms of any of the agreements identified in Exhibit F, Researcher will: (a) give notice to Pioneer of any inventions or discovery (patentable or not) during the term of this Agreement in connection with Researcher's performance of its obligations under this Agreement; (b) obtain written acknowledgement from its employees, subcontractors and agents that they assign to Researcher all ownership rights in said inventions; (c) assign to Pioneer, [**] 20 and/or [**] 21 , as applicable, all of Researcher's rights therein; and (d) execute any necessary papers and otherwise reasonably cooperate with Pioneer, [**] 22 and/or [**] 23 , as applicable, in the securing of patents or other intellectual property rights on such inventions.

5.4   Plant Materials are proprietary to Pioneer. Plant Materials may be protected by a variety of intellectual property rights including PVP certificates, trade secrets, non-use obligations and patents. A conditional limited right is created under this intellectual property granted by this Agreement to solely perform the Services. No other right or license of any kind is granted nor is to be implied under this Agreement, except to the extent reasonably necessary for the performance of the Services hereunder. Additionally, Proprietary Information may contain a third party technology to which no rights are granted. Nothing in this Agreement shall be construed to require Researcher and Pioneer to enter into any future business or technical relationship or understanding, nor shall this Agreement be construed in any way as any commitment to Researcher with respect to the Plant Materials beyond the Services set forth in this Agreement.

SECTION 6 - INDEMNIFICATION

6.1   Researcher will defend, indemnify, protect and hold harmless Pioneer, its Affiliates and their respective executives, officers, directors, stockholders, representatives, employees, agents, parent companies, and subsidiaries from and against any and all demands, actions, recalls, claims, obligations, causes of action, complaints, lawsuits and legal or other similar proceedings ( "Claims" ) and any judgments, penalties, fines, settlements, losses, liabilities, damages and costs (including attorney's fees) resulting from any Claims to the extent Claims arise out of or are related to (i) a breach by Researcher or its Affiliates of this Agreement (including, without limitation, any failure by Researcher or its Affiliates to perform or comply with the Stewardship Guidelines or Exhibit D ), or (ii) a breach by Pioneer of any agreement set forth on Exhibit F, which breach arises out of any breach, action or omission by Researcher or its Affiliates under the terms of this Agreement.

_________________________
18 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
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.

12


6.2   Pioneer shall defend, indemnify, protect and hold harmless Researcher, its Affiliates and their respective executives, officers, directors, stockholders, representatives, employees, agents, parent companies, and subsidiaries from and against any and all Claims and any judgments, penalties, fines, settlements, losses, liabilities, damages and costs (including attorney's fees) resulting from any Claims to the extent such Claims arise out of or are related to a breach by Pioneer or its Affiliates of this Agreement.

6.3   THE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY 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), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OTHER THAN FOR SUCH DAMAGES OR LOST PROFITS ACTUALLY INCURRED BY SUCH PARTY PURSUANT TO A THIRD- PARTY CLAIM. NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE AMOUNT OF THE AMOUNTS PAID BY OR TO IT HEREUNDER DURING THE TWELVE MONTH PERIOD PROCEEDING THE DATE SUCH CLAIM, DEMAND OR ACTION ARISES (OR IN THE CASE OF CLAIMS, DEMANDS OR ACTIONS ARISING PRIOR TO THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, DURING THE TWELVE MONTH PERIOD FOLLOWING THE EFFECTIVE DATE), PROVIDED THAT THE FOREGOING LIMITATION ON DAMAGES SHALL NOT APPLY TO (I) LOSSES OR DAMAGES ACTUALLY INCURRED BY SUCH PARTY PURSUANT TO A THIRD-PARTY CLAIM (ANY CLAIM BY [**] 24 OR [**] 25 ), (II) CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY, OR (III) LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO A BREACH OF SECTION 2.

SECTION 7 - WARRANTIES AND LIMITATIONS

7.1 Each party represents and warrants to the other party that (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder, and (ii) its execution, delivery and performance of this Agreement will not result in a violation or breach of, or constitute (with or without due notice or lapse of time

_________________________
24 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
25 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

13


or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any license, contract, agreement or other instrument or obligation to which it or any of its Affiliates is a party or by which it or any of its properties or assets may be bound.

7.2   Pioneer represents and warrants that Researchers' performance of the Services, to the extent performed strictly in accordance with the terms of this Agreement (including, without limitation, in accordance with all Stewardship Guidelines and Exhibit D ) as contemplated under this Agreement, will not infringe any third party's intellectual property rights.

7.3   EXCEPT AS SET FORTH IN SECTIONS 7.1 AND 7.2 , PIONEER MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AS TO ANY MATTER, WHATSOEVER, INCLUDING, BUT NOT LIMITED TO (i) AS TO THE VALIDITY OR ACCURACY OF INFORMATION PROVIDED BY PIONEER, (ii) AS TO WHETHER THE SERVICES WILL NOT RESULT IN SAFETY OR HEALTH HAZARDS TO RESEARCHER'S EMPLOYEES OR REPRESENTATIVES, (iii) THAT THE EXERCISE OF THE RIGHTS GRANTED BY PIONEER UNDER ANY AGREEMENT DO NOT INFRINGE PATENTS OR ANY OTHER RIGHTS OF ANY THIRD PARTY, AND (v) PIONEER MAINTAINING OR ENFORCING ITS RIGHTS UNDER PIONEER'S PROPRIETARY INFORMATION.

7.4   EXCEPT AS PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SUBJECT MATTER HEREOF (OTHER THAN WITH RESPECT TO THE ACCURACY OF REPORTS RESEARCHER PROVIDES WITH RESPECT TO THE RESULTS), INCLUDING, WITHOUT LIMITATION, IMPLIED CONDITIONS OR WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.

SECTION 8 - TERM AND TERMINATION

8.1   This Agreement shall be effective as of the date first written above and, unless terminated as set forth below in Section 8.2 or Section 8.3 , shall continue until the earlier of (i) the execution and closing under the Second APSA (as such term is defined in the APSA) or December 31, 2017.

8.2   Notwithstanding the provisions of Section 8.1 :

  1. Either Party shall have the right to terminate this Agreement by giving sixty (60) days written notice to the other Party in the event of any material breach of this

14


    Agreement by the other party (which notice shall provide reasonable detail of such breach by the other party) and a failure to cure such breach within such sixty (60) day period.

  1. Either Party shall have the right to terminate this Agreement immediately by giving written notice to the other Party if the other Party shall be adjudicated a bankrupt or make an arrangement for the benefit of creditors, or bankruptcy, insolvency, reorganization, arrangement, debt adjustment, receivership, liquidation or dissolution proceedings shall be instituted by or against the other Party and, if instituted adversely, the other Party consents to the same or admits in writing the material allegations thereof or said proceedings shall remain undismissed for ninety (90) days.
  2. Pioneer shall have the right to terminate this Agreement immediately by giving written notice to Research in the event of a termination of any agreement listed on Exhibit F .
  3. Pioneer shall have the right to terminate this Agreement immediately upon delivery of written notice to Researcher if Researcher ceases to be compliant with any of the Stewardship Policies, or in the event that Pioneer shall receive written notice from [**] 26 or [**] 27 stating that Researcher ceases to be compliant with any of the Stewardship Policies.

8.3   Notwithstanding the provisions of Section 8.1 , a Party may terminate this Agreement in the event of any one or more of the following (each, a "Change of Control "):

  1. a direct or indirect sale, exchange, or other transfer of more than fifty percent (50%) of the outstanding equity of the other Party (whether by the issues or sale of equity, merger, consolidation or otherwise); or
  2. if an encumberer takes possession of all or a substantial part of the business used in the business of the such other Party's performance of its obligations hereunder or if a distress or execution or any similar process is levied or enforced against such other Party and remains unsatisfied for a period of sixty (60) calendar days.

Each Party that experiences a Change of Control shall provide written notice to the other Party of such Change of Control. A Party terminating the Agreement pursuant to this Section 8.3 shall deliver written notice of termination no later than ten (10) business days following such Party's receipt of written notice of the applicable Change of Control; provided , however , that if written notice of any Change of Control is not timely provided to the other party, such party may nevertheless deliver written notice of termination.

8.4   Upon expiration or termination of this Agreement, all rights and obligations under this Agreement shall become null, void and ineffective, except that the rights and obligations

_________________________
26 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
27 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

15


of either Party that have accrued shall not be affected thereby. Notwithstanding anything contained in this Agreement to the contrary, the Parties' rights and obligations under this Section 8 and Sections 2 , 4 , 5 , 6 , 7 , 8 , 10 , 11 and 12 shall survive the expiration or earlier termination of this Agreement.

8.5   Neither termination of the Services, nor termination or expiration of this Agreement, shall relieve the Parties of any obligation with respect to Confidential Information or Results developed prior to either termination or expiration and shall not modify the ownership rights in Proprietary Information, Plant Materials and/or Results. Additionally, neither termination of the Services, nor termination or expiration of this Agreement shall relieve Researcher of any regulatory and environmental compliance obligations such as those outlined in the Protocols or Stewardship Guidelines. Pioneer will be obligated to pay for only those Services performed and expenses incurred in compliance with applicable Protocols, Research Plans, and Stewardship Guidelines. Upon notice of termination of this Agreement, Researcher shall use all reasonable efforts to discontinue the ongoing Services and minimize any additional costs to Pioneer unless otherwise specifically agreed to in writing by the Parties.

8.6   Any remaining Plant Materials specifically related to terminated Services, and all remaining Plant Materials upon termination or expiration of this Agreement shall be destroyed or returned at Pioneer's request in accordance with the applicable procedures found in the Protocols and Stewardship Guidelines. Researcher shall provide written confirmation to Pioneer of the destruction. If Researcher has any questions regarding the disposition of Plant Materials, Researcher shall promptly contact the designated Pioneer representative.

8.7   At Pioneer's request, and following payment of all amounts payable to Research (provided that Researcher has promptly delivered an invoice in accordance with the terms hereof), Researcher will return any remaining Proprietary Information and/or Results to Pioneer. Upon the expiration or earlier giving of any notice of termination of this Agreement, Researcher shall immediately (i) cease use of Proprietary Information and (ii) deliver Proprietary Information and/or Results to Pioneer.

SECTION 9 - ASSIGNABILITY

9.1 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; provided , however , that no consent shall be required if this Agreement is assigned by Pioneer to an Affiliate or in connection with the sale, transfer or assignment of all or substantially all of the Party' s business or assets and such Affiliate or purchaser, transferee or assignee shall have agreed, in a writing reasonably acceptable to Researcher, to be bound by the terms of this Agreement and to assume Pioneer' s obligations hereunder, and (ii) no consent from Pioneer shall be required if this Agreement is assigned by Researcher to an Affiliate that is wholly-owned by Researcher if (a) such Affiliate shall have agreed, in a writing reasonably acceptable to Pioneer, to be bound by the terms of this Agreement and to assume Researcher's obligations hereunder, (b) Researcher shall have executed and

16


delivered to Pioneer a guaranty in substantially the same form as the Guaranty (as defined in the APSA), pursuant to which Researcher shall guaranty all of the obligations of such wholly-owned Affiliate under this Agreement, and (b) [**] 28 and [**] 29 shall have given their prior written consent to such assignment and to the continuation of the transactions contemplated by this Agreement in accordance with the terms herein, in form and substance acceptable to Pioneer. Any attempted assignment in violation of this Section 9.1 shall be void.

SECTION 10 - GOVERNING LAW; DISPUTES

10.1   Any dispute between the Parties arising out of or relating to this Agreement or the transactions contemplated hereby, or the interpretation, validity or effectiveness of this Agreement, or any provision of this Agreement, in the event the Parties fail to agree, shall, upon the written request of a Party, be referred to designated senior management representatives of the Parties for resolution. Such representatives shall promptly meet and, in good faith, attempt to resolve the controversy, claim or issues referred to them.

10.2   If such representatives do not resolve the dispute within thirty (30) days after the dispute is referred to them, the dispute shall be settled by binding arbitration, in accordance with the Center for Public Resources (hereinafter referred to as "CPR") Rules for Non-Administered Arbitration of Business Disputes. For disputes in which the amount in controversy is less than or equal to U.S. $1,000,000, the Parties shall mutually select one (1) neutral arbitrator who shall be qualified by experience and training to arbitrate commercial disputes. If the Parties cannot agree on an arbitrator or if the amount in controversy exceeds U.S. $1,000,000, such dispute shall be settled by three (3) arbitrators who shall be qualified by experience and training to arbitrate commercial disputes, of whom each Party involved in the arbitration shall appoint one, and the two appointees shall select the third, subject to meeting the qualifications for selection. If the Parties have difficulty finding suitable arbitrators, the Parties may seek assistance of CPR and its CPR Panels of Distinguished Neutrals. Judgment upon the award or other remedy rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be in Des Moines, Iowa. The arbitrators shall apply the substantive law of the State of Iowa, without regard to its conflicts of law principles, and their decision thereon shall be final and binding on the Parties. Discovery shall be allowed in any form agreed to by the Parties, provided that if the Parties cannot agree as to a form of discovery (i) all discovery shall be 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 PHI and fifty percent (50%) by Researcher. Each Party does hereby irrevocably consent to service of process by registered mail, return receipt requested with respect to

_________________________
28 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
29 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

17


any such arbitration in accordance with and at its address set forth in Section 12 (as such address may be updated from time to time in accordance with the terms of Section 12 ). Any arbitration contemplated by this Section 10 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 12 (as such address may be updated from time to time in accordance with the terms of Section 12 ) 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.

10.3   All proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the Parties to each other or to the arbitration panel in connection with this Section 10 shall be deemed to be in furtherance of settlement negotiation and shall be privileged and confidential, and shielded from production in other proceedings except as may be required by applicable law.

10.4   This Agreement shall be governed by the substantive laws of the State of Iowa, without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Des Moines, Iowa shall have exclusive jurisdiction over any proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement or the transactions contemplated hereby. The Parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 12 (as such address may be updated from time to time in accordance with the terms of Section 12 ).

10.5   The Parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the Parties.

10.6   Notwithstanding the foregoing, either Party to this Agreement may seek, in the State or Federal courts in the City of Des Moines, Iowa, interim or provisional injunctive relief (or similar equitable relief) to maintain the status quo until such time as the designated senior management representatives of the Parties resolve a dispute referred to them or an arbitration award or other remedy is entered in connection with such dispute pursuant to this Section 10.6 and, by doing so, such Party does not waive any right or remedy available under this Agreement.

18


SECTION 11 - GENERAL PROVISIONS

11.1   Relationship of the Parties. Neither Party to this Agreement shall have any authority to employ any person as an employee or agent for or on behalf of the other Party or any purpose, and neither Party to this Agreement, nor any third party performing any duties or engaging in any work at the request of such Party, shall be deemed to be an employee or agent of the other Party to this Agreement.

11.2   Names and Trademarks. Researcher and Pioneer shall not use the other's name or trademarks in any advertising, publicity, or news release related to this Agreement and its subject matter. No item bearing any trademark of Pioneer may be sold to anyone other than Pioneer or its designated agents.

11.3   Force Majeure. The failure or delay of either Party to perform any obligation under this Agreement by reason of acts of God, adverse weather conditions (either from the perspective of agricultural production of seed or its shipment by sea/air), epidemics, acts of civil or military authority, civil disturbance, war, strikes or other labor disputes or disturbances, fire, transportation contingencies, shortage of facilities, fuel, energy, labor or materials, or laws, regulations, acts or orders of any governmental agency or official thereof, other catastrophes, or any other circumstance beyond its reasonable control ( "Force Majeure" ) shall not be deemed to be a breach of this Agreement so long as the Party so prevented from complying with this Agreement shall have used its commercially reasonable efforts to avoid such Force Majeure or to ameliorate its effects, and shall continue to take all actions within its power to comply as fully as possible with the terms of this Agreement. In the event of any such default or breach, performance of the obligations shall be deferred until the Force Majeure ceases.

11.4   Pioneer Core Values - Child and Forced Labor and Human Trafficking Prohibition.

  1. Pioneer will not tolerate the use of child or forced labor, slavery or human trafficking in any of its global operations and facilities. Pioneer will not tolerate the exploitation of children, their engagement in unacceptable hazardous work, or the trafficking, physical punishment, abuse, or involuntary servitude of any worker. Pioneer expects its suppliers and contractors with whom it does business to uphold the same standards.
  2. Researcher certifies that it is fully aware of the DuPont Principles on Child and Forced Labor and Human Trafficking (the "DuPont Principles" ) available under Respect for People at http://www.pioneer.com/home/site/about/business/commitment/. Researcher certifies that it does not and will not employ, directly or indirectly or through a subcontractor, any person to perform services, provide product, or manufacture or supply material for Pioneer who is under sixteen (16) years of age, or eighteen (18) years of age in the case of hazardous services, in a manner contravening the DuPont Principles or in violation of any relevant laws or regulations.

19


  1. Researcher certifies that the workers it uses, and will use, to produce product, provide services, or manufacture or supply material are present voluntarily. Researcher certifies that it and its suppliers of goods and services do not and will not knowingly use prison, slave, human trafficked or forced labor in contravention of the DuPont Principles or relevant laws and regulations.
  2. Researcher understands that these certifications and undertakings are essential to the Agreement. Researcher agrees to indemnify Pioneer and its parent Pioneer, E. I. du Pont de Nemours and Company ( "DuPont" ), and hold Pioneer and DuPont harmless with respect to any violation of relevant laws and regulations, or for any liability arising from the contravention of the DuPont Principles, or non-compliance with this Section 11.4 by Researcher. Researcher also agrees that, in the event that Pioneer determines that a violation of this Section 11.4 has occurred, Pioneer shall notify Researcher and Researcher shall immediately remedy the violation. In the event that Pioneer determines that Researcher has not remedied the violation, then Pioneer may terminate the Agreement immediately, and such termination shall be with cause.

11.5   Except as otherwise expressly stated in this Agreement, the rights and remedies of a Party set forth herein with respect to failure of the other to comply with the terms of this Agreement (including, without limitation, rights of full termination of this Agreement) are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved Party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.

11.6   Waiver. Any term or provision of this Agreement may be waived at any time by the Party entitled to the benefit thereof only by a written instrument executed by such Party. No delay on the part of Researcher or Pioneer in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any waiver on the part of either Researcher or Pioneer of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor will any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

11.7   Severability. If any provision hereof is found invalid or unenforceable pursuant to any executive, legislative, judicial or other decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, unless either Party deems the invalid or unenforceable provisions to be essential to this Agreement, in which case such Party may terminate this Agreement, effective immediately, upon written notice to the other Party.

11.8   Third Party Benefits. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns. Nothing contained in this Agreement, express or implied, shall be deemed to confer any right or remedy upon, or obligate any Party hereto to, any person or entity other than the Parties hereto.

20


11.9   Entire Agreement. This writing (together with the APSA and the Transaction Documents, as such term is defined in the APSA) contains the entire agreement between the Parties superseding any prior agreements dealing with the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing, signed by the parties.

11.10   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.

11.11   Books and Records; Audit. Researcher shall maintain, and shall cause each of its Affiliates and permitted subcontractors and sublicensees to maintain, complete and accurate records relating to the rights and obligations under this Agreement, which records shall contain sufficient information to permit Pioneer, [**] 30 and [**] 31 , together with their representatives (comprised of at least one person certified as a public accountant in at least one jurisdiction in the United States, selected from a nationally recognized third party accountant firm by the auditing party and reasonably acceptable to the party being audited) to confirm the accuracy of any reports, breeding activities, stewardship compliance, seed production efforts, seed quality levels, field trials, plantings, or any other activities contemplated herein and/or payments developed or pursued by Researcher, its Affiliates or permitted subcontractors in alfalfa pursuant to the terms of this Agreement. Researcher shall retain and make available, and shall cause each of its Affiliates and permitted subcontractors and sublicensees to retain and make available, such records for at least four (4) years following the end of the calendar year to which they pertain, to such auditing party's representatives upon at least fifteen (15) days' advance written notice, for inspection during normal business hours, to verify any reports and payments made under this Agreement. Prior to any such inspection, such auditing party's representatives shall be required to sign a reasonable non-disclosure and non-use agreement with the party being audited to protect the confidential information of the party being audited.

SECTION 12 - NOTICES

All notices, demands, requests, consents or other communications hereunder shall be in writing and shall be deemed sufficiently given if personally delivered, in which case such notice shall be deemed received upon delivery, or sent by prepaid air courier of internationally recognized repute, in which case such notice shall be deemed received upon receipt of confirmation of transmission of the telefax to the Parties at the following address, or to such other address as may be designated by written notice given by either Party to the other Party:

_________________________
30 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
31 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

21


If to Pioneer:

PIONEER HI-BRED INTERNATIONAL, INC.
Attention: General Counsel
DuPont Pioneer
7250 N.W. 62nd Ave.
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-4844

If to Researcher:

S&W SEED COMPANY
Attention: Chief Financial Officer
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax: (559) 255-5457

[ Signature Page Follows ]

 

 

22


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

S&W Seed Company
( Researcher )

 

Pioneer Hi-Bred International
(Pioneer)

By __________________________________

By ___________________________________

Name:

Name:

Title:

Title:

   

 

 

 

 

[Signature Page for Research Agreement]


EXHIBIT 10.4

** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a
confidential treatment request

CONFIDENTIAL

NON-EXCLUSIVE ALFALFA LICENSING AND ASSIGNMENT AGREEMENT

This Non-Exclusive Alfalfa Licensing and Assignment Agreement (including all Exhibits hereto, as amended, modified or supplemented from time to time in accordance with its terms, the "Agreement" ) is entered into this 31st day of December, 2014, by and between Pioneer Hi-Bred International, Inc., having an address at 7100 NW 62 nd Avenue, Johnston, Iowa 50131-1014 (the licensee, hereafter "Pioneer" ), and S&W Seed Company, having an address at 25552 South Butte Avenue, Five Points, California 93624 (hereinafter "Licensor" ) (Pioneer and Licensor, hereinafter, are referred to each individually as a "Party" and together as the "Parties" ).

WHEREAS , Pioneer and Licensor are parties to that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the "First APSA" ), pursuant to which Licensor and/or its Affiliates purchased or licensed from Pioneer and/or its Affiliates, and Pioneer and/or its Affiliates sold or licensed to Company and/or its Affiliates, certain assets associated with the development of specified commercial alfalfa seed, as provided therein;

WHEREAS , subject to the terms and conditions of the First APSA, Pioneer and Licensor may enter into that certain Asset Purchase and Sale Agreement following the Closing Date (the "Second APSA" ), pursuant to which Licensor and/or its Affiliates may purchase from Pioneer and/or its Affiliates, and Pioneer and/or its Affiliates may sell to Licensor and/or its Affiliates, certain assets associated with the development of specified commercial alfalfa seed, as provided therein;

WHEREAS , both Parties wish for Pioneer to license from Licensor the Germplasm for the purpose of introducing [**] 1 Traits and [**] 2 Traits into such Germplasm licensed pursuant to this Agreement, and for Pioneer to assume ownership of new varieties created by incorporating [**] 3 Traits and [**] 4 Traits into such Germplasm; and

WHEREAS , capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the First APSA.

NOW, THEREFORE , in consideration of the premises and of the mutual covenants herein contained, it is hereby agreed as follows:

ARTICLE I - DEFINITIONS

  1. "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,

_____________________
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 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

1


    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.

  1. "Agreement" is defined in the preamble.
  2. "Claims" is defined in Article VI(5) .
  3. "Confidential Information" is defined in Article VII(1) .
  4. "CPR" is defined in Article VII(2) .
  5. "First APSA" is defined in the recitals.
  6. "Germplasm" means the germplasm identified on Exhibit A, as the same may be amended by mutual agreement of Licensor and Pioneer from time to time.
  7. "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.
  8. "Intellectual Property" means all right, title and interest in and to all proprietary assets owned by or under license to Pioneer necessary for the production and development of varieties, including, without limitation, plant variety protection certificates and applications adopted pursuant to the U.S. Plant Variety Protection Act, the International Union for the Protection of New Varieties of Plants and similar applicable domestic and foreign laws or conventions, all domestic and foreign letters patent, patents, patent applications, and patent licenses.
  9. "License Term" is defined in Article V(1) .
  10. "[**] 5 Trait" means the trait including event [**] 6 that reduces the content of [**] 7 .
  11. "Licensed Territory" is defined as worldwide.
  12. "Licensor" is defined in the preamble.
  13. "Party" or "Parties" is defined in the preamble.
  14. "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.

_____________________
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.

2


  1. "Pioneer" is defined in the preamble.
  2. "Progeny Germplasm" means non-traited progeny of the Germplasm modified or generated by Pioneer resulting from Pioneer's exercise of its rights and obligations under this Agreement.
  3. "[**] 8 Trait" means [**] 9 proprietary first generation [**] 10 trait that includes the event [**] 11 .
  4. "Second APSA" is defined in the recitals.
  5. "Traited Germplasm" means any Germplasm or progeny of the Germplasm which includes the [**] 12 Trait, [**] 13 Trait, or both traits that has been modified or generated by Pioneer resulting from Pioneer's exercise of its rights and obligations under this Agreement.

ARTICLE II - INTENT IN GRANT OF LICENSE

  1. Subject to the terms of this Agreement, Licensor hereby grants to Pioneer and its Affiliates, and Pioneer hereby agrees and accepts on behalf of its Affiliates, during the License Term in the Licensed Territory, a royalty-free, limited non-exclusive, nontransferable license to plant, grow, breed and conduct research with the Germplasm and Progeny Germplasm solely for the purpose of introducing the [**] 14 Trait and [**] 15 Trait into the Germplasm and Progeny Germplasm.
  2. The scope of the license granted in Article II(1) is strictly limited to the grant therein. Pioneer agrees not to use any of the rights granted in Article II(1) for any other purpose.
  3. Nothing herein shall prevent either Party from engaging in activity related to the development, production, distribution, and commercialization of any crop or any other research or commercial activity in any market, either individually, jointly, or in collaboration with any third party.
  4. In the event that the parties shall not consummate the Closing (as such term is defined in the Second APSA) under the Second APSA, the parties agree to negotiate in good faith to reach a mutually acceptable commercial agreement which would entitle Licensor to a market-based compensation based on the Germplasm contribution to the Traited Germplasm for any Traited Germplasm Pioneer wishes to produce, sell and distribute.
  5. In the event the exercise of Pioneer's rights hereunder results in any other development or invention from the Germplasm, Progeny Germplasm or Traited Germplasm, Pioneer shall own all right, title and interest in and to such development or invention.

ARTICLE III - RESTRICTIONS ON GRANT OF LICENSE

  1. Aside from the Grant of license in Article II(1), Licensor does not grant Pioneer or its Affiliates any other rights or license to any Licensor licenses and know-how licenses, and trade secrets, technical knowledge, proprietary processes, formulae, know-how, all biological material utilized

_____________________
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.

3


    in breeding and development of the Germplasm, including, without limitation, seed stocks, breeding and parental lines, segregating populations; breeding and development records, both electronic or hardcopy, related to breeding and development of Germplasm, owned or used, directly or indirectly, in the operation of Licensor's business, and other confidential proprietary information and related ownership, use and other rights of Licensor (including rights of renewal and rights to sue for past, present and future infringements or misappropriations of any of the foregoing), and goodwill of Licensor associated therewith.

  1. The only permissible uses by Pioneer and its Affiliates of the Germplasm and Progeny Germplasm covered by this Agreement are those set forth in Article II(1) . No production, sales or distribution of the Germplasm is permitted.
  2. The Germplasm and the Progeny Germplasm shall remain the property of Licensor. The Traited Germplasm shall become the property of Pioneer upon the insertion of either the [**] 16 Trait or [**] 17 Trait into the Germplasm or Progeny Germplasm.

ARTICLE IV - INTENT IN ASSIGNMENT

  1. Licensor will assign and does hereby assign to Pioneer (i) all rights, title and interest in and to each and all of the Traited Germplasm and any other developments or inventions resulting from Pioneer's exercise of it rights and obligations under this Agreement, and (ii) all rights to sue for, to claim and to recover for all past, present and future infringement thereof; the same to be held and enjoyed by Pioneer for its own use and benefit.
  2. Pioneer may choose, in its sole discretion, to obtain U.S. and/or foreign patent and plant variety protection registration of the Traited Germplasm, any other developments or inventions resulting from Pioneer's exercise of it rights and obligations under this Agreement and/or related Intellectual Property.
  3. Licensor will cooperate in executing all appropriate documents reasonably requested by Pioneer to complete formalities for perfecting the assignment from Licensor to Pioneer. Further, Licensor agrees that, upon request and without further compensation, Licensor and its employees, consultants, legal representatives, and its and their successors and/or assigns, will perform any and all lawful acts, including the execution of oaths, assignments, powers of attorney, and any and all other papers, which Pioneer, its successors, assigns, and/or representatives shall reasonably consider necessary or advisable for vesting, perfecting, recording, or maintaining the title of Pioneer, its successors and assigns, to the Traited Germplasm and any other developments or inventions resulting from Pioneer's exercise of it rights and obligations under this Agreement. All costs and expenses associated with the foregoing, including, but not limited to, all legal and notarization costs and expenses, shall be borne by Licensor.
  4. Pioneer shall retain full ownership of all right, title, and interest in and to the Traited Germplasm; provided , however , that if the Parties shall consummate the Closing (as such term is defined in the Second APSA) under the Second APSA Pioneer agrees to assign and will assign to Licensor all right, title, and interest in and to the Traited Germplasm in all events in accordance with the terms and subject to the conditions set forth in the Second APSA. Further,

_____________________
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.

4


    Pioneer agrees that, upon request and without further compensation, Pioneer and its employees, consultants, legal representatives, and its and their successors and/or assigns, will perform any and all lawful acts, including the execution of oaths, assignments, powers of attorney, and any and all other papers, which Licensor, its successors, assigns, and/or representatives shall reasonably consider necessary for vesting, perfecting, recording, or maintaining the title of Licensor, its successors and assigns, to Traited Germplasm. All costs associated with the foregoing, including, but not limited to, all legalization and notarization costs, shall be borne by Licensor.

  1. No transfer of ownership rights from Pioneer is intended by this Agreement. Aside from the transfer of rights for Traited Germplasm, no other transfer of ownership rights from Licensor is intended by this Agreement.

ARTICLE V - TERM AND TERMINATION

  1. This Agreement shall be effective as of the date first written above and, subject to Article II(4) , shall continue until the earlier of (i) the date on which the Parties shall consummate the Closing (as such term is defined in the Second APSA) under the Second APSA, or (ii) December 31, 2017 (the "License Term" ).
  2. Subject to Article II(4) , either Party may terminate this Agreement immediately upon any termination of the Research Agreement, dated December 31, 2014, between the Parties.
  3. Subject to Article II(4) , upon expiration or termination of this Agreement, all rights and obligations under this Agreement shall become null, void and ineffective, except that the rights and obligations of either Party that have accrued shall not be affected thereby. Notwithstanding anything contained in this Agreement to the contrary, the Parties' rights and obligations under this Article V and Articles VI , VII , VII , IX and X shall survive the expiration or earlier termination of this Agreement.
  4. Subject to Article II(4) , upon expiration or termination of this Agreement, all Germplasm and Progeny Germplasm shall be destroyed or returned at Licensor's request in accordance with procedures reasonably specified by Licensor. Pioneer shall provide written confirmation to Licensor of the destruction.

ARTICLE VI - REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

  1. Pioneer will comply fully and ensure its Affiliates and allowed sublicensees similarly comply fully with all applicable laws and regulations of applicable Governmental Bodies regarding the growing, conditioning/processing, treatment, packaging, testing, transportation, importation, handling, storage, distribution and disposal of Germplasm, Progeny Germplasm and Traited Germplasm.
  2. NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS, EXTENDS ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, OR ASSUMES ANY RESPONSIBILITIES WHATSOEVER WITH RESPECT TO:

    1. THE PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE GERMPLASM, PROGENY GERMPLASM OR TRAITED GERMPLASM

5


    1. THE SUITABILITY, COMPLETENESS OR ACCURACY OF INFORMATION OR OTHER DATA PROVIDED IN CONNECTION WITH THIS AGREEMENT;
    2. THE SCOPE OR VALIDITY OF ANY PATENT OR PVP/PBR CERTIFICATES OF THE GERMPLASM, PROGENY GERMPLASM OR TRAITED GERMPLASM; OR
    3. ANY GERMPLASM, PROGENY GERMPLASM OR TRAITED GERMPLASM BEING FREE FROM INFRINGEMENT OF PATENTS

  1. To Licensor's knowledge, the Germplasm are distinct, uniform and stable alfalfa varieties.
  2. Each Party hereby represents and warrants that any information transmitted to the other Party under this Agreement has not been received or generated under any restrictions from, or in any manner as to obligate an employee of Licensor, to any third party, and that the transfer of such information to Pioneer is free and unencumbered by said third parties.
  3. Each Party represents and warrants that it is not under any obligation to or restriction by any third party that would prevent it from entering into this Agreement.
  4. Licensor warrants the Licensor is legally entitled to grant the license granted in Article II(1) .
  5. Pioneer agrees to save, defend, indemnify and hold Licensor, its Affiliates and their respective members, shareholders, employees, directors, officers, representatives and agents harmless from and against any and all claims, demands, suits and actions, causes of action for any loss, liability, obligation, injury, damage, costs and expenses, (including without limitation fees and expenses of attorneys, investigators, and experts and other costs and expenses incident to any suit, action or proceeding) of any kind whatsoever ( "Claims" ) against Licensor resulting from any wrongful use by Pioneer or its Affiliates of the Germplasm, Progeny Germplasm, Traited Germplasm or Traits including Claims resulting solely from the gross negligence, misconduct, deliberate misrepresentation, or breach of this Agreement by Pioneer, as adjudicated by decision of a court of competent jurisdiction, unappealable or unappealed within the time provided by law. Licensor agrees to save, defend, indemnify and hold Pioneer, its Affiliates and their respective members, shareholders, employees, directors, officers, representatives and agents harmless from and against any and all Claims against Pioneer resulting from any wrongful use by Licensor or its Affiliates of the Germplasm, Progeny Germplasm, Traited Germplasm or Traits including Claims resulting solely from the gross negligence, misconduct, deliberate misrepresentation, or breach of this Agreement by Licensor, as adjudicated by decision of a court of competent jurisdiction, unappealable or unappealed within the time provided by law.

ARTICLE VII - CONFIDENTIALITY

  1. For purposes of this Agreement, "Confidential Information" means (i) this Agreement, and the Exhibits hereto, and (ii) and any information disclosed by one Party or its Affiliates or their representatives to the other Party or its Affiliates or their representatives in connection with the transactions contemplated hereby and identified in writing as "confidential" or similar notation. Except as otherwise permitted by this Agreement, a Party shall not, and shall cause its Affiliates and their respective employees, consultants, agents and attorneys not to, disclose the Confidential Information of the disclosing party or its Affiliates or their representatives to any third party or use the Confidential Information except for purposes of this Agreement and the transactions contemplated hereby without the prior written permission of the disclosing party for

6


    a period of seven (7) years after the date of disclosure; provided , that the foregoing obligations of confidentiality and restricted use shall not extend to information that is: (i) already known at the time of its receipt by the receiving party, as shown by its prior written records; (ii) properly in the public domain through no fault of the receiving party; (iii) disclosed to the receiving party by a third party who may lawfully do so; or (iv) independently developed by or for the receiving party without use of the disclosing party's Confidential Information.

  1. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party required to be disclosed by applicable law or the rules or regulations of any U.S. or foreign securities exchange (if not subject to protection as confidential business information or otherwise protected by statute or common law privilege against disclosure); provided, however, that prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (i) give the other party written notice of such requirement prior to any such disclosure and (ii) allow the other party reasonable time to take such steps as to limit such disclosure. The parties shall cooperate with one another in the good faith making or assertion of any available defense or privilege relating to the disclosure of the Confidential Information.
  2. Notwithstanding the foregoing, a receiving party may disclose Confidential Information to its Affiliates, and their respective officers, directors, employees, consultants, agents and attorneys having a need to know for the purposes of consummating the transactions contemplated hereby and who are subject to a confidentiality agreement or obligation covering such information.
  3. Notwithstanding anything to the contrary contained in this Article VII , each Party agrees that it shall, and shall cause its Affiliates and their respective officers, directors, employees, consultants, agents and attorneys to, (i) take reasonable measures to protect the secrecy, and avoid disclosure, except as expressly permitted by this Article VII , and unauthorized use, of the Confidential Information of the other Party and its Affiliates and (ii) with respect to the Confidential Information of the other party and its Affiliates, take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care.

ARTICLE VIII- GOVERNING LAW

  1. Any dispute between the Parties arising out of or relating to this Agreement or the transactions contemplated hereby, or the interpretation, validity or effectiveness of this Agreement, or any provision of this Agreement, in the event the Parties fail to agree, shall, upon the written request of a Party, be referred to designated senior management representatives of the Parties for resolution. Such representatives shall promptly meet and, in good faith, attempt to resolve the controversy, claim or issues referred to them.
  2. If such representatives do not resolve the dispute within thirty (30) days after the dispute is referred to them, the dispute shall be settled by binding arbitration, in accordance with the Center for Public Resources (hereinafter referred to as "CPR" ) Rules for Non-Administered Arbitration of Business Disputes. For disputes in which the amount in controversy is less than or equal to U.S. $1,000,000, the Parties shall mutually select one (1) neutral arbitrator who shall be qualified by experience and training to arbitrate commercial disputes. If the Parties cannot agree on an arbitrator or if the amount in controversy exceeds U.S. $1,000,000, such dispute shall be settled by three (3) arbitrators who shall be qualified by experience and training to arbitrate commercial disputes, of whom each Party involved in the arbitration shall appoint one, and the two appointees shall select the third, subject to meeting the qualifications for selection.

7


    If the Parties have difficulty finding suitable arbitrators, the Parties may seek assistance of CPR and its CPR Panels of Distinguished Neutrals. Judgment upon the award or other remedy rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be in Des Moines, Iowa. The arbitrators shall apply the substantive law of the State of Iowa, without regard to its conflicts of law principles, and their decision thereon shall be final and binding on the Parties. Discovery shall be allowed in any form agreed to by the Parties, provided that if the Parties cannot agree as to a form of discovery (i) all discovery shall be 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 Pioneer and fifty percent (50%) by Licensor. 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 Article IX (as such address may be updated from time to time in accordance with the terms of Article IX ). Any arbitration contemplated by this Article VIII 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 Article IX (as such address may be updated from time to time in accordance with the terms of Article IX ) 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.

  1. All proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the Parties to each other or to the arbitration panel in connection with this Article VIII shall be deemed to be in furtherance of settlement negotiation and shall be privileged and confidential, and shielded from production in other proceedings except as may be required by applicable law.
  2. This Agreement shall be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement or the transactions contemplated hereby. The Parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Article IX (as such address may be updated from time to time in accordance with the terms of Article IX ).
  3. The Parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the Parties.
  4. Notwithstanding the foregoing, either Party to this Agreement may seek, in the State or Federal courts in the City of Wilmington, Delaware, interim or provisional injunctive relief (or similar equitable relief) to maintain the status quo until such time as the designated senior management representatives of the Parties resolve a dispute referred to them or an arbitration award or other

8


    remedy is entered in connection with such dispute pursuant to this Article VIII and, by doing so, such Party does not waive any right or remedy available under this Agreement.

ARTICLE IX - NOTICES

All notices, demands, requests, consents or other communications hereunder shall be in writing and shall be deemed sufficiently given if personally delivered, in which case such notice shall be deemed received upon delivery, or sent by prepaid air courier of internationally recognized repute, in which case such notice shall be deemed received upon receipt of confirmation of transmission of the telefax to the Parties at the following address, or to such other address as may be designated by written notice given by either Party to the other Party:

If to Pioneer:

PIONEER HI-BRED INTERNATIONAL, INC.
Attention: General Counsel
DuPont Pioneer
7250 N.W. 62nd Ave.
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-4844

If to Licensor:

S&W SEED COMPANY
Attention: Chief Financial Officer
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax: (559) 255-5457

ARTICLE X - MISCELLANEOUS

  1. Neither Party to this Agreement shall have any authority to employ any person as an employee or agent for or on behalf of the other Party or any purpose, and neither Party to this Agreement, nor any third party performing any duties or engaging in any work at the request of such Party, shall be deemed to be an employee or agent of the other Party to this Agreement.
  2. 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; provided , however , that no consent shall be required if this Agreement is assigned by a Party to an Affiliate or in connection with the sale, transfer or assignment of all or substantially all of the Party's business or assets and such Affiliate or purchaser, transferee or assignee shall have agreed, in a writing reasonably acceptable to the other Party, to be bound by the terms of this Agreement and to assume such Party's obligations hereunder; provided , further , that Licensor may only assign this Agreement to an Affiliate if (i) such Affiliate is wholly-owned by Licensor and (ii) Licensor shall have executed and delivered to Pioneer a guaranty in substantially the same form as the Guaranty (as defined in the First APSA), pursuant to which Licensor shall guaranty all of the obligations of such wholly-owned Affiliate under this Agreement. Any attempted assignment in violation of this Article X(2) shall be void.

9


  1. Any term or provision of this Agreement may be waived at any time by the Party entitled to the benefit thereof only by a written instrument executed by such Party. No delay on the part of Licensor or Pioneer in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any waiver on the part of either Licensor or Pioneer of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor will any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
  2. If any provision hereof is found invalid or unenforceable pursuant to any executive, legislative, judicial or other decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms, unless either Party deems the invalid or unenforceable provisions to be essential to this Agreement, in which case such party may terminate this Agreement, effective immediately, upon written notice to the other Party.
  3. This writing (together with the First APSA and the Second APSA, if applicable, and the Transaction Documents, as such term is defined in the First APSA) contains the entire agreement between the Parties superseding any prior agreements dealing with the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing, signed by the parties.
  4. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns. Nothing contained in this Agreement, express or implied, shall be deemed to confer any right or remedy upon, or obligate any Party hereto to, any person or entity other than the Parties hereto.
  5. 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]

10


IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.

 

PIONEER :

 

PIONEER HI-BRED INTERNATIONAL, INC.

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

LICENSOR :

 

S&W SEED COMPANY

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

[Signature Page to
Non-Exclusive Alfalfa Licensing and Assignment Agreement]


EXHIBIT 10.5

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

LEASE AGREEMENT
(Alfalfa Facilities Only-Connell, Washington)

This Lease Agreement ("Agreement") dated the 31st day of December, 2014, is made by and between Pioneer Hi-Bred International, Inc., an Iowa corporation, with its principal place of business located at 7100 NW 62 nd Avenue, Johnston, Polk County, Iowa 50131 ("Landlord") and S & W Seed Company, a Nevada corporation, whose address for purposes of this Agreement is 25552 South Butte Avenue, Five Points, CA 93624 ("Tenant").

WITNESSETH

1. Leased Premises . Landlord, in consideration of the rents to be paid and covenants to be performed by Tenant hereunder, hereby leases to Tenant for the term and subject to the covenants and conditions hereinafter set forth the following described Premises (herein "the Premises"), which is a portion of the Franklin County, Washington real property legal described on attached Exhibit "F" ( i.e. , a portion of Franklin County Assessor Parcel No. 109-560-152):

A. The greenhouse, warehouse, headhouse, office, lab, part of the machine shed, outside equipment storage area for alfalfa business (but not corn business), and approximately twelve (12) motor vehicle parking spaces east of the greenhouse for Tenant's exclusive use, depicted in the attached photograph identified as Exhibit "A" and incorporated in this Agreement by reference, the approximately twenty-eight (28) acres of land to be used strictly for agricultural research purposes only including plot tours (the "Ag Land") depicted in the attached photograph identified as Exhibit "B" and incorporated in this Agreement by reference and use of the Common Areas depicted in the attached photograph identified as Exhibit "C" and incorporated in this Agreement by reference (collectively the "Premises").

B. The Premises are delivered to Tenant on an "AS IS, WHERE IS, AND AS SHOWN" basis with no warranties of condition, including environmental condition, or suitability of the Premises for Tenant's intended alfalfa business.

2. Term.

A. Commencement . This Agreement shall commence on the 1 st day of January 2015, and continue thereafter until the 31 st day of December 2017, and shall not be subject to renewal.

B. Termination . This Agreement may be terminated in the event of one or more of the following events:

  1. By mutual agreement evidenced in writing by both parties;

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

  1. Upon 60 days written notice by Tenant without cause;
  2. Upon Default as set forth below in Paragraph 9;
  3. Upon a casualty as set forth below in Paragraph 17(c); or
  4. Upon a substantial violation of Landlord's Rules and Regulations set forth in the attached Exhibit "D."

3 . Rent . Tenant shall pay Landlord as rent ("Rent") for the Premises during the term of this Agreement the monthly sum of Nine Thousand Three-Hundred, Thirty-Three Dollars ($9,333). Rent is payable in advance each month. All Rent checks shall be made payable to Landlord at the address shown in Section 19 of this Agreement and to the attention of "Real Estate Manager."

4. Use of Premises . Tenant shall not commit or suffer any waste in the Premises, use the Premises or permit them to be used for any unlawful purpose or any dangerous, noxious or offensive activity or cause or maintain any nuisance in the Premises. At the end of the term of this Agreement, Tenant shall deliver up and surrender the Premises in as good an order and condition as they now are, or may be put by Landlord or Tenant, reasonable use and ordinary wear and tear thereof and damage by fire or other casualty excepted.

Premises shall be used for the storage of commercial, non-hazardous goods and agricultural research purposes, including plot tours, only and no other uses. Tenant agrees to keep the Premises free of all combustibles and hazardous products and substances, and Tenant shall comply with all municipal, state and federal environmental laws.

Except as expressly provided otherwise in this Agreement, all costs of occupancy of the Premises shall be borne solely by Tenant, including but not limited to utility costs, supplies, window washing, pest services, and replacement of lights and bulbs including the greenhouse. Landlord shall provide basic janitorial services to include weekly cleaning of the bathrooms and vacuuming/mopping of the floors. All other cleaning arrangements and costs shall be the responsibility of Tenant.

5. Damage or Destruction to Premises . In the event the Premises (except for the Ag Land) are rendered untenantable by fire or other casualty, Tenant shall vacate the damaged Premises within ten (10) days and will pay no further Rent as to the damaged or destroyed portion of the Premises and Landlord shall refund to Tenant the unearned portion of any Rent paid in advance prorated to the date of damage or destruction and prorated as to that building, structure or portion thereof within the Premises so damaged or destroyed.

6. Maintenance Repairs and Alterations . Landlord hereby covenants that the Premises shall be in reasonably good and usable condition as of the effective date of this Agreement. Replacements made by Landlord, if any, shall belong to it. Landlord shall keep access to the Premises free and clear of any and all obstructions including snow and ice.


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

In the event of an emergency, Tenant shall have the right to perform any obligation of Landlord under this Agreement and recover from Landlord any reasonable amounts so expended by Tenant within thirty (30) days of the date of demand or, in the alternative, to offset amounts so expended against Rent.

Landlord shall, at its sole expense, make structural repairs and replacements to the footings, foundation and structural elements of walls and roofs of the Premises and also shall be responsible for maintenance, repairs and replacements, at its sole expense, of heating, ventilating, air conditioning systems, plumbing systems, and electrical systems, provided, however, that Tenant, at its sole expense, shall be responsible for maintenance, repairs and replacements regarding the irrigation system on the Premises as well as Tenant's occupancy costs as described above in Section 4 of this Agreement and shall also be responsible for maintenance, repairs or replacements necessitated by Tenant's actions. Contact information for the Landlord in case of any maintenance, repair or replacement issues is as follows:

[**] 1

Additions, improvements and alterations made by Tenant, whether temporary or permanent in nature, shall be subject to the prior approval of Landlord and upon completion shall belong to Tenant, provided that removal may be made without damage to the Premises at the expiration of the Agreement term. If removal of the improvements or alterations would cause damage to the Premises, said improvements and alterations shall automatically become the property of Landlord. Tenant, at its sole expense, shall be responsible for maintenance, repairs and replacements of any additions, improvements or alterations made by Tenant on, in or to the Premises. Tenant shall keep the Premises in good order, repair and condition at all times during the Agreement term, except for ordinary wear and tear.

7. Assignment and Sublease . Tenant shall not assign performance of this Agreement nor sublet the Premises or any part thereof without the express written consent of Landlord, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant may assign or sublet the Premises, or any portion thereof, without Landlord's consent, to any corporation which controls, is controlled by or is under common control with Tenant, or to any corporation resulting from the merger or consolidation with Tenant, or to any person or entity which acquires all the assets of Tenant as a going concern of the business that is being conducted on the Premises, all of which are referred to as "Tenant Affiliate"; provided that before such assignment shall be effective, said assignee shall in writing assume, in full, the obligations of Tenant under this Agreement and Tenant shall provide a copy of the Assignment and Assumption Agreement to Landlord.

_________________________
1 Omitted and filed separately with the SEC pursuant to a confidential treatment request.


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

8. Eminent Domain . If any part of the Premises shall be taken by any public authority under the power of eminent domain, such as to render the facility ineffective for Tenant's uses, then the Term of this Agreement shall cease as of the day possession shall be taken by such public authority and the Rent shall be paid up to that day with a proportionate refund by Landlord of any Rent that may have been paid in advance, but Rent paid by Tenant shall be abated proportionately. Notwithstanding any award made to Landlord by such public authority in connection with the taking of all or any portion of the Premises, Tenant may separately pursue a claim against the public authority for the value of Tenant's personal property which Tenant is entitled to remove under this Agreement, relocation and moving costs, loss of business, and other claims Tenant may have, but only to the extent Landlord's award is not diminished by such Tenant claim.

9. Default . In the event of any default by either Landlord or Tenant in the performance of any obligation under the provisions of this Agreement, the party being defaulted on may, at its option, cancel this Agreement by written notice by certified mail, return receipt requested, to the defaulting party specifying such default. Unless the defaulting party eliminates or cures such default within thirty (30) days following the mailing of such notice, this Agreement shall terminate upon the expiration of such thirty (30) day period.

10. Quiet Enjoyment . Landlord agrees that if Tenant pays the Rent as required in this Agreement and keeps and performs the covenants of this Agreement on the part of Tenant as described in this Agreement, Tenant will peaceably and quietly occupy the Premises during the term hereof without any hindrance, ejection or molestation by Landlord or any person lawfully claiming under Landlord; provided, however, Tenant acknowledge that Landlord will continue its corn business on the portion of its adjacent property not identified as the "Premises" and such Landlord's use, including but not limited to Landlord's use of Common Areas as described below in Section 14, shall not be considered to be a violation of Landlord's covenant of Quiet Enjoyment of the Premises.

11. Binding Effect . This Agreement and the obligations of Landlord and Tenant contained herein shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the respective parties.

12. Indemnification.

A. From Tenant . Tenant shall indemnify, defend and hold Landlord harmless from and against any and all claims arising from Tenant's use of the Premises and the Common Areas described below in paragraph 14 or from the conduct of its business or from any activity, work or thing which may be permitted, or which may occur, in or about the Premises or Common Areas. Tenant shall further indemnify, defend and hold Landlord harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the provisions of this Agreement or arising from any negligent or intentional acts or omissions of Tenant or any of Tenant's agents, contractors,


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

employees or invitees and from and against any and all costs, reasonable attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If, however, Landlord, its agents, contractors, employees or invitees are found to be negligent in any manner, Tenant's indemnification will extend only to the degree of negligence of Tenant and shall not cover any of Landlord's negligence, for which Landlord shall be responsible and Landlord agrees to so indemnify and hold harmless Tenant from such liability, all as provided for herein.

B. From Landlord . Landlord shall indemnify, defend and hold Tenant harmless from and against any and all claims arising from Landlord's ownership of the Premises or from the conduct of its business or from any activity, work or thing which may be permitted or which may occur in or about the Premises or the Common Areas described below in paragraph 14 and Landlord shall further indemnify, defend and hold Tenant harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Landlord's part to be performed under the provisions of this Agreement or arising from any negligent or intentional acts or omissions of Landlord or any of Landlord's agents, contractors, employees or invitees and from and against any and all costs, reasonable attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If, however, Tenant, its agents, contractors, employees or invitees are found to be negligent in any manner, Landlord's indemnification will extend only to the degree of negligence of Landlord and shall not cover any of Tenant's negligence, for which Tenant shall be responsible and Tenant agrees to so indemnify and hold harmless Landlord from such liability, all as provided for herein.

C. Environmental Indemnification . Notwithstanding anything contained herein to the contrary, Landlord agrees to indemnify, defend and hold harmless Tenant, in whole or in part, from any environmental liability resulting from contamination to the Premises, in any manner, including without limitation, air, water, and soil contamination, and at any time, past, present and future, unless such contamination is determined to be attributable in whole or in part to contamination arising out of or resulting from the use of the Premises or Common Areas by Tenant. Where the liability is determined to be attributable to multiple parties, including Tenant, Tenant shall not be indemnified or held harmless by Landlord for the part of the liability determined to be Tenant's responsibility. The obligations of this paragraph shall survive termination, cancellation or expiration of this Agreement.

13. Taxes; Tenant Utilities; and Shared Utilities.

A. Payment of Taxes. All real estate taxes, ad valorem taxes and special assessment which become due and payable during the term of this


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

Agreement regarding the Premises occupied by Tenant are prorated between Landlord and Tenant based on the areas occupied by each and are already included and accounted for in the Rent payable by Tenant under Section 3 above.

B. Tenant Utilities . Except as provided below in subparagraphs C, D, and E, Tenant shall be responsible to arrange for and pay for all utilities furnished to the Premises and, at its cost, install separate meters for the utilities, including but not limited to electricity, propane, gas, water, sewer treatment, waste management services, telephone service, fiber optic service and any other similar service required by Tenant.

C. Shared Utilities. To the extent that utilities are shared between Landlord and Tenant, including lawn irrigation and a water well, the cost or responsibility for those utilities shall be equitable shared by and between Landlord and Tenant based on their respective uses in a fashion mutually agreeable to the parties.

D. Relocation of Telephone and Data Lines. Landlord's telephone and data lines located on the Premises shall be relocated to Landlord's adjacent property at its cost promptly after execution of this Agreement whereupon Tenant at its cost shall install its own telephone and data lines. Landlord will schedule the relocation work in a fashion which will minimize disruption of service to Tenant.

E. Installation of Propane Tank. Promptly after execution of this Agreement, Landlord, at its sole expense, shall install a five-hundred (500) gallon propane tank and appurtenances to serve the Premises. Tenant shall be responsible to pay for propane required for its operations on the Premises.

14. Common Areas. Because of the location of the Premises in relation to Landlord's adjacent property, there is hereby established Common Areas within both the Premises and within Landlord's adjacent property, which shall be shared by Landlord and Tenant, including but not limited to motor vehicle entrance drives, driveways, walkways and parking areas as generally depicted on the attached Exhibit "C." The use of the Premises and the Common Areas by Tenant shall be subject to rules and regulations promulgated by Landlord as set forth in Exhibit "D." Landlord shall be responsible for maintenance of the Common Areas, including snow removal and lawn care.

15. Nondisclosure Agreement. In view of the fact that Landlord and Tenant will be in close proximity to each other's facilities and in view of the use by Landlord and Tenant of Common Areas and that they may possibly be exposed to each other's confidential information or trade secrets, Landlord and Tenant shall execute a Mutual Confidential Information and Nondisclosure Agreement ("NDA") at the time this Lease Agreement is executed in substantially the same form as set forth in the attached Exhibit "E." 


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

16. Compliance with Laws and Landlord's Rules and Policies . Each party covenants throughout the term of this Agreement, at its own sole cost and expense, to promptly comply with all laws, rules and regulations of all federal, state and local governments which may be applicable to the Premises or the use or manner of use of the Premises. Furthermore, Tenant shall comply with Landlord's Rules and Policies as set forth in the attached Exhibit "D."

17.       Insurance Prior to the commencement of this Agreement, Tenant shall provide satisfactory evidence, by Certificate of Insurance, of the coverage outlined in the following sections.

A.        Liability and Worker's Compensation Insurance .  Tenant shall, throughout the term of this Agreement, at its sole cost and expense, maintain insurance with respect to the Premises:

  • Commercial general liability insurance or self-insurance in an amount not less than [**] 2 combined single limit (CSL) each occurrence, with an annual aggregate of [**] 3 for Products/Completed Operations, and an annual aggregate of [**] 4 for all other losses, and excess liability insurance of [**] 5 combined single limit (CSL) each occurrence and aggregate.
  • Worker's Compensation insurance to meet statutory requirements and Employers Liability in an amount not less than [**] 6 each accident, [**] 7 Disease - Policy Limit and [**] 8/SUP> Disease - Each Employee.

B.        Notice of Termination .  Each insurance policy shall be issued by an insurance company of recognized standing reasonably acceptable to Landlord and shall include Landlord as an additional named insured party. These policies shall further provide that no cancellation or termination thereof or any material modification thereof shall be effective except upon thirty (30) days written notice to Landlord.

C.        Casualty; Landlord's and Tenant's Right to Terminate .  Landlord shall have no duty to rebuild or replace any structure, building, or improvement substantially damaged or destroyed by fire or other casualty on the Premises and Landlord or Tenant in that event shall have the right to terminate this Agreement without penalty unless Landlord and Tenant are able to reach an agreement on how to modify the Rent and terms of this

_________________________
2 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
3 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
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.


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

Agreement to reflect the damage or destruction and loss of use of the Premises by Tenant. Moreover, Tenant agrees neither Landlord nor any of Landlord's directors, officers, employees, or other agents will be liable for any injury, loss, or damage to any personal property kept on the Premises by Tenant (whether owned by Tenant or any third party) that is caused by fire, water, the elements, burglary, theft, or any other cause. Landlord recommends Tenant obtain appropriate insurance to cover said personal property any such injury, loss, or damage.

18. Waiver of Subrogation . Tenant hereby waives on behalf of its insurance carriers any right of subrogation that may exist or arise against the other party to this Agreement. Tenant shall cause the insurance companies issuing its insurance policies with respect to the Premises to waive any subrogation rights that the companies may have against Landlord, which waivers shall be specifically stated in the respective policies.

19. Notice . Any notice required or permitted to be given hereunder between Landlord and Tenant shall be given in writing, by personal delivery, facsimile, commercial courier or by certified mail as follows:

Tenant:

S & W Seed Company
ATTN: Chief Financial Officer
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax: (559) 255-5457

 

Landlord:

Pioneer Hi-Bred International, Inc.
ATTN: [**] 9

All such notices shall be effective upon delivery, attempted delivery, or refusal, whichever occurs first, at the address or addresses of the intended recipient, as set forth above.

20. Enter onto Premises . Upon oral or written notice to Tenant delivered no less than twenty-four hours in advance (but without notice in emergencies), Landlord and its authorized representatives may enter the Premises at all reasonable times and, if required by Tenant, shall be accompanied by Tenant's employee.

21. Tenant Access . During the term of this Agreement, Tenant shall have unlimited access to Premises during the course of normal business hours which, for purposes hereof, are 6 AM to 8 PM, Monday through Friday, and 7AM to 5PM on Saturdays and Sundays, subject to Landlord's security procedures and protocols existing for Landlord's adjoining property and the Common Areas which Tenant shall observe and obey.

_________________________
9 Omitted and filed separately with the SEC pursuant to a confidential treatment request.


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

22. Landlord's Waiver; Mechanic's Liens Prohibited. With exception to the Landlord lien for rent arising under RCW 60.72.010, Landlord shall and hereby does expressly waive and release any and all contractual liens and security interests or constitutional and/or statutory liens and security interests arising by operation of law to which Landlord might now or hereafter be entitled on all Tenant's property which is now or hereafter placed in or upon the Premises, except for judgment liens that may arise in favor of Landlord. Tenant shall not allow any mechanic's lien or other similar lien or claim to be asserted or filed against Landlord or the Premises and all contractors, subcontractors, suppliers or other persons who furnish material or labor, or who perform labor, upon the Premises are prohibited from filing or asserting any such lien or claim against Landlord and the Premises.

23. Attorneys' Fees . In the event of any dispute between Landlord and Tenant in any way related to this Agreement, and whether involving contract and/or tort claims, the non-prevailing party shall pay to the prevailing party all reasonable attorneys' fees and costs and expenses of any type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in connection with any action or proceeding (including any appeal and the enforcement of any judgment or award), whether or not the dispute is litigated or prosecuted to final judgment.

24. Child and Forced Labor Prohibition . Landlord (sometimes referred to herein as "Pioneer") will not tolerate the use of child or forced labor, slavery or human trafficking in any of its global operations and facilities. Pioneer will not tolerate the exploitation of children, their engagement in unacceptably hazardous work, or the trafficking, physical punishment, abuse, or involuntary servitude of any worker. Pioneer expects its Tenant, and the suppliers and contractors with whom Tenant does business, to uphold the same standards.

Tenant certifies that it is fully aware of the DuPont Principles on Child and Forced Labor and Human Trafficking ("DuPont Principles") available under Respect for People at http://www.pioneer.com/home/site/about/business/commitment/. Tenant certifies that it does not and will not employ, directly or indirectly or through a subcontractor, any person to perform services, provide product, or manufacture or supply material for Pioneer who is under sixteen (16) years of age, or eighteen (18) years of age in the case of hazardous services (hereinafter "Child Labor"), in a manner contravening the DuPont Principles or in violation of any relevant laws or regulations. 

Tenant certifies that the workers it uses, and will use, to produce product, provide services, or manufacture or supply material are present voluntarily. Tenant certifies that it and its suppliers of goods and services do not and will not knowingly use prison, slave, human trafficked or forced labor in contravention of the DuPont Principles or relevant laws and regulations.

Tenant understands that these certifications and undertakings are essential to the Agreement. Tenant agrees to indemnify Pioneer and its parent company, DuPont, and hold Pioneer and its parent company, DuPont, harmless with respect to any violation of


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

relevant laws and regulations, or for any liability arising from the contravention of the DuPont Principles, or non-compliance with this Section by Tenant, its suppliers and contractors. Tenant also agrees that, in the event that Pioneer determines that a violation of this Section has occurred, Pioneer shall notify Tenant and Tenant shall immediately remedy the violation. In the event that Pioneer determines that Tenant has not remedied the violation, then Pioneer may terminate the Agreement immediately, and such termination shall be with cause.

25. Criminal Background Checks and Escort Policy .

A. The Tenant shall perform criminal background checks on all employees prior to working on a Pioneer site. The Tenant criminal background check program must comply with the Fair Credit Reporting Act as well as all applicable Federal and State laws. These criminal background checks shall determine if the employee has been convicted of a felony or misdemeanor crime within the past seven (7) years or has any known criminal convictions prior to the past seven (7) years. If the Tenant finds that an employee has been convicted, the Tenant shall not allow that employee to work on the Pioneer site unless approved, in writing, by Landlord.

B. In the event of an emergency, an employee of the Tenant may temporarily work on a Pioneer site only if the criminal background check is ongoing and the Tenant employee is escorted by a Pioneer employee One Hundred (100) percent of the time. If a security pass is not warranted, the employees of the Tenant shall be required to comply with all Landlord escort policies.

26. General Provisions .

A. Governing Law . This Agreement shall be governed by the laws of the State of Iowa and the parties hereto agree that venue shall be proper in any state or federal court located within the State of Iowa.

B. Waiver . The waiver by either party hereto of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein. The acceptance of Rent hereunder shall not be construed to be a waiver of any breach by Tenant of any term, condition or covenant of this Agreement.

C. Remedies Cumulative . It is understood and agreed that the remedies herein given to the parties hereto shall be cumulative, and the exercise of any one remedy by Landlord or Tenant shall not be to the exclusion of any other remedy.


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

D. Successors and Assigns . The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators and assigns and sublessees of all of the parties hereto. If Landlord or Tenant is comprised of multiple parties, each of such parties hereto shall be jointly and severally liable hereunder.

E. Entire Agreement . This Agreement, the exhibits herein referred to, and any addendum executed concurrently herewith, including the NDA, are the final, complete and exclusive agreement between the parties and cover in full each and every agreement of every kind or nature, whatsoever, concerning the Premises and Common Areas and all preliminary negotiations and agreements of whatsoever kind or nature, are merged herein. Landlord has made no representations or promises whatsoever with respect to the Premises and Common Areas, except those contained herein, and no other person, firm or corporation has at any time had any authority from Landlord to make any representations or promises on behalf of Landlord, and Tenant expressly agrees that if any such representations or promises have been made by others, Tenant hereby waives all right to rely thereon. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statute, law or custom to the contrary notwithstanding. Unless otherwise provided herein, no supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by the parties.

F. Captions . The captions of paragraphs of this Agreement are for convenience only, and do not in any way limit or amplify the terms and provisions of this Agreement.

G. Partial Invalidity . If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

H. Authority . The Tenant warrants that the person executing this Agreement has obtained or has the requisite corporate or other authority to do the same.

I. Approvals . Any consent or approval required hereunder shall not be unreasonably withheld, conditioned or delayed by the party from whom such consent or approval is requested unless this Agreement expressly provides otherwise.


** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

J. Counterparts . This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each party may execute a facsimile or electronic counterpart signature page to be followed by an original counterpart. Each such facsimile or electronic counterpart signature page shall constitute a valid and binding obligation of the party signing such facsimile or electronic counterpart.

K. Recording .  Neither Landlord nor Tenant will record this Lease; provided, however, at the time of the execution of this Lease, the parties will also execute the Memorandum of Lease attached as Exhibit "G", which Landlord will cause to be recorded by the Auditor for Franklin County, Washington.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate as of the day and year first above written.

S & W SEED COMPANY
TENANT

PIONEER HI-BRED INTERNATIONAL, INC.
LANDLORD

 

By: _______________________________

Print Name: ________________________

Print Title: _________________________

By: _______________________________

Print Name: ________________________

Print Title: _________________________

Date Signed: _______________________

Date Signed: _______________________

By: _______________________________

Print Name: ________________________

Print Title: _________________________

By: _______________________________

Print Name: ________________________

Print Title: _________________________

Date Signed: _______________________

Date Signed: _______________________

[Signature Page to Ground Lease]


STATE OF __________________________

) ss.

COUNTY OF _________________________

I certify that I know or have satisfactory evidence that ____________________ is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the ______________________ of S&W SEED COMPANY , a Nevada corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.

DATED: ___________________________, 2014.

____________________________________

[PRINT NAME] ________________

NOTARY PUBLIC for the State of ________,
residing at ______________.

My appointment expires: ___________________.

STATE OF __________________________

) ss.

COUNTY OF _________________________

I certify that I know or have satisfactory evidence that ____________________ is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the ______________________ of PIONEER HI-BRED INTERNATIONAL, INC. , an Iowa corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.

DATED: ___________________________, 2014.

____________________________________

[PRINT NAME]

NOTARY PUBLIC for the State of ________,
residing at ______________.

My appointment expires: ___________________.

[Signature Page to Ground Lease]


EXHIBIT 10.6

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

INFORMATION TECHNOLOGY TRANSITION SERVICES AGREEMENT

This INFORMATION TECHNOLOGY TRANSITION SERVICES AGREEMENT is made as of the 31st day of December, 2014, by and between Pioneer Hi-Bred International, Inc., an Iowa corporation ( "Pioneer" ), and S&W Seed Company, a Nevada corporation ( "S&W" ). S&W and Pioneer are at times referred to herein individually as a "Party" and collectively as the "Parties . "

WHEREAS , pursuant to that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the "Purchase Agreement" ) by and between Pioneer and S&W, Pioneer will sell to S&W and S&W will purchase from Pioneer, the Purchased Assets;

WHEREAS , to ensure an orderly transition of the ownership of the Purchased Assets to S&W, the Parties have agreed to enter into this Agreement, pursuant to which Pioneer shall provide, or cause its Affiliates to provide, S&W with certain identified services, in each case on a transitional basis and subject to the terms and conditions set forth herein;

WHEREAS , unless otherwise defined herein, capitalized terms shall have the meanings ascribed to such terms in the Purchase 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, the Parties hereby agree as follows:

ARTICLE 1. DEFINITIONS

1.01   CERTAIN DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings specified or referred to in this Article 1 :

"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.

"Agreement" - means this Information Technology Transition Services Agreement, and includes all Exhibits , Schedules and SLAs hereto, as amended, modified or supplemented from time to time in accordance with its terms.

"Breaching Party" - is defined in the definition of "Willful Breach."


"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.

"Change" - is defined in Section 2.01(e) (Changes).

"Change Request" - is defined in Section 2.01(e) (Changes).

"Claim" - means any action, claim, demand, suit, arbitration or other Proceeding.

"Confidential Information" - is defined in Section 5.01 (Confidential Information).

"Contract" - means any agreement, contract, obligation, promise or undertaking (whether oral or written) that is legally binding.

"Cost Principles" - means charging Full Cost for a Service, plus a 5% mark-up of non-third party costs. Costs representing amounts payable to third parties (e.g., contractors) are considered to be at market and therefore a 5% mark-up is not applied to such costs; however, the Full Cost of administering these third party services by Pioneer's resources (e.g. a contract administrator) is subject to the 5% mark-up.

"CPR" - is defined in Section 13.05 .

"Damages" - means any Liabilities and/or judgments (including reasonable legal, accounting and other expenses and court costs).

"DEAA" - means the DuPont Electronic Access Agreement attached to this Agreement as Exhibit B .

"Defaulting Party" - is defined in Section 6.01 (Default).

"Demand Forecasting" - is defined in Section 3.07 (S&W Obligations).

"Disclosing Party" - is defined in Section 5.03 (Disclosure).

"DISO" - is defined in Section 3.07 (S&W Obligations).

"Effective Time" - is defined as the date and time of the closing of the transactions contemplated in the Purchase Agreement.

"Equipment" - is defined in Article 11 (Equipment).

"Expenses" - is defined in Section 4.01 (Consideration).

"Force Majeure" - means, for either Party, any circumstance(s) beyond the reasonable control of that Party which has the effect of delaying, hindering or preventing (in whole or in part) performance, including acts of God, fire, accident, flood, explosion, war, civil disturbance, acts of terrorism, hurricanes, tornadoes, riots, action or inaction by, or request of, any Governmental Body (including any Legal Requirements), strike, collective bargaining obligations, labor dispute or shortage, injunction, failure to supply or delay on the part of contractors, errors in services

2


supplied by contractors, inability to obtain or shortage of fuel, utilities, equipment or apparatus. A Force Majeure event affecting a third party supplier of any Service and any failure by such a supplier to supply (in whole or in part) any Service for any other reason shall constitute Force Majeure hereunder if, and to the extent that, such event or failure prevents, hinders or delays Pioneer in the performance of its obligations hereunder.

"Full Cost" - means all direct and indirect, fixed and variable costs, fees and period expenses, including administrative costs that are incurred in connection with a Service.

"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.

"Indemnified Person" - is defined in Section 8.01 (Third Party Indemnification).

"Indemnifying Person" - is defined in Section 8.01 (Third Party Indemnification).

"Intellectual Property" - means (i) issued patents, pending patent applications and patent disclosures, whether or not reduced to practice, including any re-issuances, continuations, continuations-in-part, divisions, supplementary protection certificates, extensions and re- examinations thereof, (ii) registered and unregistered trademarks, service marks, trade dress, trade names, domain names, uniform resource locators (URLs), and websites, logos and corporate names and intellectual property registrations and applications for registrations therefor, (iii) registered and unregistered copyrights and mask works, (iv) technical, manufacturing, development, production, marketing and scientific know-how, technology, information and data (including, but not limited to, diagrams, charts, formulas and analytical methods), (v) trade secrets and other confidential information, (vi) information technology rights, and (vii) any other similar or other intellectual property rights, whether tangible or intangible, and whether protected or not, but in all events, excluding any IT Assets.

"Interdependent Service" - is defined in Section 6.04 (Interdependent Services).

"IT Assets" - means all software, computer systems, telecommunications equipment, databases, Internet Protocol addresses, data rights and documentation, reference and resource materials relating thereto, and all Contracts (including Contract rights) relating to any of the foregoing (including software license agreements, source code escrow agreements, support and maintenance agreements, electronic database access contracts, domain name registration agreements, website hosting agreements, software or website development agreements, outsourcing agreements, service provider agreements, interconnection agreements, governmental permits, radio licenses and telecommunications agreements).

"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, expenses, claims, taxes or assessments, losses, fines, penalties or damages of or by any Person.

"Migration Plan" - is defined in Section 2.04 (Migration from Services).

3


"Non-Defaulting Party" - is defined in Section 6.01 (Default).

"Non-Disclosing Party" - is defined in Section 5.03 (Disclosure).

"Party" and "Parties" are defined in the preamble.

"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.

"Pioneer" - is defined in the preamble.

"Primary Coordinator" - is defined in Article 9 (Governance).

" 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).

"Pioneer Intellectual Property" - is defined in Section 10.01 (Intellectual Property Ownership).

"Purchase Agreement" - is defined in the preamble.

"Purchased Assets" - is defined in the Purchase Agreement.

"Public Utility Event" - is defined in Section 6.05 (Public Utility Status).

"S&W" - is defined in the preamble.

"S&W Content" - is defined in Section 10.01 (Intellectual Property Ownership).

"Required Notice Period" -means the applicable notice period for S&W's termination of a Service as set forth in the relevant SLA for such Service opposite the heading "Required Notice Period for Early Termination," or three (3) months if not otherwise specified in the SLA.

"Residual Costs" - means all costs, fees and expenses accruing to Pioneer as a result of the termination of any Service(s). Examples of Residual Costs include the cost of employees used to provide Service(s), fees and expenses for "take or pay" type commitments, buy-out of leased equipment, a pro rata portion of any termination fees and a pro rata portion of contractual minimum payments.

"Service" - is defined in Section 2.01(a) (Services Provided).

"Service Fees" - is defined in Section 4.01 (Consideration).

"Service Term" - is defined in Section 2.03 (Term of Service).

"SLA" - is defined in Section 2.01(a) (Services Provided).

4


"Specification" - means the specifications or scope of the Service stated in the relevant section of the applicable SLAs, as those Specifications may be amended from time to time by Pioneer on not less than thirty (30) days prior written notice.

"Taxes" - means any tax, levy, duty, impost, or withholding of a similar nature, including without limitation, all direct tax liabilities, income tax, corporation tax, capital gains tax, value added tax (VAT), sales tax, social security, withholding tax, registration fees, stamp duties, customs duties, property tax, gross receipts, lease, service,  workers compensation, occupation, excise, use, transfer, license, payroll, severance, windfall profits, unemployment, disability, highway use, recording, real estate, business license and similar taxes, together with any interest, additions to tax, or penalties applicable or related thereto imposed or required to be withheld by any Governmental Body.

"Term of this Agreement" - is defined in Section 2.03 (Term of Service).

"Third-Party Claim" - is defined in Section 8.02 (Procedure).

"Transitional Services Employees" - is defined in Section 2.02 (Personnel, Resources and Third Parties).

"Willful Breach" - means a deliberate, volitional, non-coerced and non-accidental act or omission by a Party in breach of its obligations hereunder to provide or accept a Service in accordance with the terms of this Agreement (the "Breaching Party" ), where such breach continues for a reasonable period of time not less than ten (10) days after the other Party (the "Non-Breaching Party" ) has served written notice on the Breaching Party.

ARTICLE 2. SERVICES PROVIDED

2.01   TRANSITIONAL SERVICES

  1. Services Provided . Upon the terms and subject to the conditions set forth in this Agreement, Pioneer will provide (either itself or through its Affiliates or third party agents or contractors) to S&W, those services covered by and described in more detail in each individual Service Level Agreement ( "SLA" ) listed and attached to this Agreement as Exhibit A (Transitional Services), which is made part of this Agreement, or which may be entered into by the Parties from time to time after the Effective Time (each a "Service" and, collectively, the "Services" ). In no event shall S&W be entitled to any new service without the prior written consent of Pioneer, which consent may be withheld by Pioneer for any or no reason in its sole and absolute discretion. In the event that Pioneer consents to provide a new service, the Parties will agree upon a new SLA which will include the Service Term, Service Fees and other information regarding the nature and scope of such new service as agreed- upon by the Parties, and shall thereafter be deemed a "Service" in accordance with Section 2.01 of this Agreement.
  2. Standard of Care . Subject to the provisions of Article 12 (Force Majeure), Pioneer shall perform the Services exercising substantially the same degree of care it exercises in performing the same or similar services for its own account. Nothing in this Agreement shall require Pioneer to favor the business of S&W over Pioneer's own businesses or those of any of its Affiliates, including any of its subsidiaries or divisions. Nothing in this

5


    Agreement shall impose a standard of care equal to or higher than that which may be applicable to commercial providers of a similar service.

  1. Service Levels . Subject to the SLAs, Section 2.01(e) (Changes) and Section 2.01(f) (Modifications or Upgrades), S&W's level of use of any Service shall not be higher than or expanded from the level of use reasonably required to support the Purchased Assets as of the Effective Time. Such limitation of use shall take into account the monthly and seasonal changes in the level of use of a Service during the eighteen (18) month period immediately preceding the Effective Time. Pioneer shall not be obligated to provide S&W with special studies, training, or the like, or the advantage of systems, equipment, facilities, training or improvements procured, obtained or made after the Effective Time. In no event shall S&W be entitled to any increase or decrease in the level of its use of any of the Services without the prior written consent of Pioneer, which consent may be withheld by Pioneer for any or no reason in its sole and absolute discretion. In the event that Pioneer consents to any reduction or decrease in service level, S&W shall not be entitled to any reduction, decrease or discount of the Service Fees absent Pioneer's express written consent.
  2. Specification . Subject to Section 2.01(c) (Service Levels) and Section 2.01(e) (Changes), Pioneer shall provide each Service indicated in each SLA to S&W according to the Specifications set forth in the SLA, subject to the limitations set forth in such SLA (including such limitations relating to scope, scale and description). S&W shall not be entitled to receive any Service different from those set forth in the respective SLAs.
  3. Changes . S&W shall not be entitled to any change to the nature, the manner of performing, or level of a Service or any additional service (each such change, a "Change" ) without the prior written consent of Pioneer, which consent may be withheld by Pioneer for any or no reason in its sole and absolute discretion. In the event S&W desires a Change, S&W will deliver a written description of the proposed Change (a "Change Request" ) to the Pioneer's Primary Coordinator. The timing for Pioneer's approval or rejection of such Change Requests shall be determined in Pioneer's sole and absolute discretion. If a Change Request is approved, S&W shall be responsible for all costs and Expenses associated with such approved Change.
  4. Modifications or Upgrades . Pioneer reserves the right to modify or upgrade the nature, the manner of performing, or level of a Service as changes are made to Pioneer's own businesses or are otherwise made with respect to Pioneer's agreements with third parties or contractors. Pioneer agrees to provide notification to S&W of such changes within a commercially reasonable time, provided that such notification shall not be provided any earlier than similar notification is presented to Pioneer's own businesses. To the extent that such changes affect a Service: (1) Pioneer shall have no obligation to continue to supply such Service using its former technology or to maintain any legacy system as an accommodation to S&W, and (2) S&W shall have no obligation to continue to receive such Service upon the implementation of such changes, provided that S&W notifies Pioneer in writing of its election to discontinue such Service within ten (10) days of Pioneer's notification of such changes. To the extent S&W wishes to continue to receive such Service, S&W shall be obligated, at S&W's sole expense and without any assistance from Pioneer relating thereto, to conform its systems as necessary to Pioneer's changes; provided that Pioneer shall determine in its sole and absolute discretion whether S&W has completed the necessary changes to conform S&W's systems.

6


  1. S&W's Use of Services . Subject to Section 13.01 (Assignments; Successors and No Third Party Rights) and the SLAs, S&W is eligible to receive the Services under this Agreement, solely to the extent relating exclusively to the Purchased Assets. To the extent that Pioneer consents to provide any Service to an Affiliate of S&W, such Services shall be provided on terms acceptable to the Parties and according to the Cost Principles. S&W shall cause such Affiliate to comply with the terms and conditions of this Agreement, including any additional terms agreed to by the Parties, as if such Affiliate were a named party under this Agreement. If Pioneer determines in its reasonable discretion that such Affiliate has failed to diligently perform such obligations, S&W shall perform such obligations on such Affiliate's behalf.

2.02   PERSONNEL, RESOURCES AND THIRD PARTIES

  1. Personnel and Third Parties . In providing the Services, Pioneer, as it deems necessary or appropriate in its sole discretion, may (1) use the personnel and resources of Pioneer or its Affiliates, or (2) employ the services and resources of third parties. Pioneer reserves the right to provide any or all of the Services directly or, in Pioneer's sole discretion, through any Affiliate, third party agents or contractors. To the extent Services are provided by an Affiliate of Pioneer, the corresponding fees and costs may be invoiced by such Affiliate directly to S&W and S&W shall pay such invoice directly to such Affiliate of Pioneer. Pioneer shall be permitted to change third party agents or contractors used to provide Services to S&W, at any time in its sole and absolute discretion.
  2. Transitional Services Employees . S&W agrees to use commercially reasonable efforts to cooperate with Pioneer by making available such former employees of Pioneer, who become employed by S&W or its Affiliates, or other employees of S&W or its Affiliates performing similar functions as such former employees of Pioneer, as Pioneer shall reasonably request in connection with the provision of the Services (the "Transitional Services Employees" ). For such time as any Transitional Services Employees are performing any functions relating to the Services, (i) such Transitional Services Employees shall remain employees of S&W or its Affiliate and shall not be deemed to be employees of Pioneer or its Affiliates for any purpose, and (ii) S&W shall be solely responsible for the payment and provision of all wages, bonuses and commissions, employee benefits (including severance and worker's compensation), social security contributions and the withholding and payment of applicable Taxes relating to such employment.
  3. New, Additional or Replacement Equipment . Pioneer shall not be obligated to acquire, upgrade, or provide new or additional equipment to perform Services for S&W under this Agreement. Subject to the SLAs, in addition to the Service Fees, S&W shall be responsible for all costs to repair or replace any equipment used to provide Services during the Service Term, provided, however, that Pioneer will not charge S&W with respect to any equipment that is subject to a valid warranty and Pioneer is able to repair or replace such equipment at no cost.

7


2.03.   TERM OF SERVICE

  1. This Agreement shall become effective at the Effective Time and shall remain in effect until the earlier of: (1) termination or expiration of all Services, or (2) termination of this Agreement by either Party as provided herein ( "Term of this Agreement" ).
  2. The term for each Service (the "Service Term" ) shall commence at the Effective Time and shall terminate upon the earlier of the: (1) date or at the time specified in the SLA; (2) end of the time period during which Pioneer is authorized to provide the Service pursuant to its contracts with third parties or applicable Legal Requirements, (3) termination by either Party as provided herein, or (4) Term of this Agreement. In no event shall S&W be entitled to extend the Service Term of any Service without the prior written consent of Pioneer, which consent may be withheld by Pioneer for any or no reason in its sole and absolute discretion.

2.04.   MIGRATION FROM SERVICES

  1. Migration Plan . Each Party acknowledges that the purpose of this Agreement is to provide the Services on a transitional basis, until S&W can perform the Services for itself, either through its own personnel or through third parties. Accordingly, at all times from and after the Effective Time, S&W shall use best efforts to make or obtain approvals, permits or licenses, implement any necessary systems, and take, or cause to be taken, any and all other actions necessary or advisable so as to render receipt of the Services from Pioneer no longer necessary. S&W agrees that within ninety (90) days of the Effective Time; it shall provide to Pioneer a written migration plan (a "Migration Plan" ) to wind down S&W's receipt of the Services and develop its internal service capabilities or employ third party providers so as to render receipt of the Services from Pioneer no longer necessary. The Migration Plan shall include, among other things, the following with respect to the Services: (1) phases of implementation, (2) milestones, (3) expected Pioneer involvement, (4) service interdependency issues, (5) requested formats for S&W's transactional data to be transferred by Pioneer, and (6) contingencies. The costs and fees of Pioneer to facilitate S&W's migration are not included in the Service Fees, and S&W shall be responsible for all additional costs of both Pioneer and S&W associated with the Migration Plan, and shall reimburse Pioneer therefor in accordance with Sections 4.03 and 4.05 . The respective Primary Coordinators and appropriate functional resources shall meet to discuss implementation of the Migration Plan and expected Pioneer involvement.
  2. Pioneer's Transition and Migration Obligations . Subject to the exclusions in Section 2.04(c) and unless otherwise agreed in writing between the Parties or as specifically set forth in any SLA, Pioneer's duties related to migration by S&W from Services are limited to furnishing files of S&W transactional data relating to the Services that have been retained by Pioneer in connection with the provision of Services, in accordance with Pioneer's records retention policies, and to the extent then available, in the format and media in which Pioneer then maintains such data.
  3. Pioneer's Excluded Transition and Migration Obligations . In the absence of an agreement in writing between the Parties (including provisions relating to further compensation therefor from S&W), Pioneer shall have no obligation to: (1) load data to S&W

8


    systems, (2) co-develop conversion programs, (3) write S&W extraction programs, (4) generate multiple data file formats, (5) provide or develop interfaces, (6) participate in testing prototypes or pilots, or (7) provide information concerning Pioneer's systems (including computer systems), operations, environments, policies, procedures or methods used to provide the Services, configuration of applications or connectivity between applications and system architecture.

2.05.   THIRD PARTY CONSENTS

  1. Obligation to Obtain Consents . Pioneer shall use commercially reasonable efforts to obtain all consents from third party vendors that to Pioneer's knowledge are required to provide the Services to S&W; provided , however , that S&W shall be solely responsible for all costs associated with securing such third party consents in accordance with Section 4.01(b) (Consent Costs). Notwithstanding the foregoing, Pioneer shall have no obligation to obtain the consent of any third party, or pay any fee or expense relating thereto, in connection with S&W's Migration Plan or the migration of any Service.
  2. Non-Consenting Third Parties . Notwithstanding the foregoing or anything to the contrary contained in this Agreement or any SLA, Pioneer shall not be required to provide a Service to the extent that Pioneer does not obtain the consent of a third party required to provide the Service, or where providing such Service would, in Pioneer's reasonable judgment, violate the rights of any third party.

2.06.   LIMITATIONS AND EXCLUSIONS

  1. Third Party Waiver . S&W expressly waives any and all rights that it or its Affiliates may have to bring any suit or Claim against Pioneer's Affiliates, third party agents or contractors relating to or arising out of this Agreement.
  2. Disclosure of Information . Pioneer has no obligation to provide any information to S&W relating to systems or operations, including computer systems, of Pioneer, its Affiliates or its third party agents or contractors, except to the extent that Pioneer determines in its sole and absolute discretion that disclosure of such information is necessary to provide the Services hereunder.
  3. Compliance with Legal Requirements . Pioneer shall not be required to perform any of its obligations under this Agreement to the extent Pioneer reasonably believes that performing such obligation would violate any Legal Requirements. The Parties shall cooperate in good faith to implement changes and/or modifications to any manner or method of Service, which in Pioneer's sole and absolute discretion, are reasonably necessary to ensure that such Service is performed in strict accordance with applicable Legal Requirements. S&W shall promptly implement any such changes and/or modifications at S&W's sole cost.
  4. S&W Data . Pioneer is not responsible for and shall have no liability with respect to the content or integrity of content of S&W's data, including communications, stored on systems or at facilities under the ownership or control of Pioneer or Pioneer's third party agents or contractors.
  5. Professional Advice or Opinions . Except as otherwise explicitly set forth in any SLA, it is not the intent of Pioneer to render, nor of the S&W to receive from

9


    Pioneer, professional advice or opinions, whether with regard to tax, legal, regulatory, compliance, treasury, finance, employment or other business and financial matters, technical advice, whether with regard to information technology or other matters, or the handling of or addressing environmental matters. S&W shall not rely on, or construe, any Service rendered by or on behalf of Pioneer as such professional advice or opinions or technical advice; and S&W shall seek all third-party professional advice and opinions or technical advice as it may desire or need independently of this Agreement.

  1. Services Performed by S&W's Employees . Except as expressly set forth in the SLAs, Pioneer shall not be obligated to perform any service or function performed to support the Purchased Assets by S&W's employees as of or immediately prior to the Effective Time.

2.07.   S&W OBLIGATIONS

  1. Compliance with Legal Requirements . S&W, in the course of receiving the Services or use of the systems of Pioneer, Pioneer's Affiliates, or Pioneer's third party agents and contractors, shall not violate any Legal Requirements, including the United States Copyright Act of 1976, as amended.
  2. Access . To the extent reasonably required to perform the Services, S&W shall (at its own expense) provide Pioneer personnel (including any of Pioneer's Affiliates, agents or contractors) with reasonable and timely access to S&W's office space, plants, equipment, information, premises, personnel, power, telecommunications systems and circuits, computer systems, and any other areas and equipment. Without limiting the foregoing, S&W shall make accessible to Pioneer, as needed, S&W's key users and other S&W personnel responsible for the execution, maintenance and enhancement of processes relating to the Services.
  3. Information Requests . S&W shall cooperate with Pioneer to respond to Pioneer's requests for any information, document, instrument or other writing which in Pioneer's sole and absolute discretion is necessary to the provision of the Services. Pioneer shall not be liable for any impairment of any part of a Service caused by its not receiving such information in a timely manner or at all, or by its receiving inaccurate or incomplete information from S&W.
  4. Acknowledgment of Pioneer Status . S&W acknowledges that Pioneer is providing the Services exclusively as an accommodation to S&W to allow S&W time to obtain similar services on its own, and that Pioneer is not a commercial provider of such services.
  5. Exclusive Pioneer . Subject to Section 2.04 (Migration from Services) or Article 12 (Force Majeure), S&W shall not have any other Person provide services the same as or similar to the Services provided under any SLA where such services would commence prior to termination of the applicable SLA or would otherwise conflict with Pioneer's ability to provide a Service under any SLA.

10


ARTICLE 3. INFORMATION SYSTEMS AND SUPPORT

3.01.   SOFTWARE AND DATABASE ACCESS

S&W shall not and has no right to access or use any software, related data or databases owned by or licensed to Pioneer, including software used by Pioneer for the benefit of S&W, except in accordance with the grant in Section 3.02 (S&W's Limited Use Rights) below.

3.02.   S&W'S LIMITED USE RIGHTS

Subject to the receipt of necessary consents from third parties, Pioneer hereby grants to S&W a non-exclusive, non-transferable, revocable right during the respective Service Term to use the software owned by or licensed to Pioneer and related data and databases, in conformance with this Agreement and with any applicable third party license, for S&W's internal use only and not for the benefit of any third party unless expressly agreed otherwise, and only as necessary for S&W's receipt of the Services. S&W shall not modify, disassemble, reverse engineer, decompile or create derivative works of such software, and shall not copy such software other than (i) as necessary to receive the Services or (ii) to the extent this restriction is prohibited by applicable Legal Requirements. Pioneer will use commercially reasonable efforts to cause all third party agents and contractors providing Services to grant similar rights with respect to software used by such third party agents and contractors to provide Services during the Service Term, provided that S&W shall be responsible for all costs associated with securing such third party consents.

3.03.   RELOCATION

Pioneer reserves the right to relocate or have relocated any and all applications accessed by S&W pursuant to this Agreement to computer systems not currently utilized to provide such Services at no additional charge to S&W.

3.04.   SECURITY

Pioneer will apply and administer all security measures to be applied to Pioneer's systems, including access rights to S&W's users. Pioneer reserves the right to control S&W's access to systems and applications on Pioneer's network.

3.05.   DATA AND NETWORK RESTRICTIONS

If Pioneer believes that there is a risk to Pioneer due to S&W's ability to access Pioneer's data, information, network or applications, Pioneer will have the right, but not the obligation, to establish and implement restrictions on S&W's access to any software, data, databases, applications, or networks used in connection with the Services. Such restrictions may be imposed for the purposes of: (i) protecting the security of data on physical and electronic networks of Pioneer; (ii) assuring compliance with contractual restrictions imposed by third parties; (iii) protecting the integrity of the data, applications, or networks; or (iv) protecting against the loss of any material competitive advantage that Pioneer may have with respect to Pioneer competitors; provided that each of the foregoing shall be determined in Pioneer's sole and absolute discretion. Pioneer will give notice to S&W of the imposition of any such restrictions. Pioneer will use commercially reasonable efforts to avoid any interruption or

11


degrading of the Services being provided by Pioneer to S&W arising from the imposition of any such restrictions. Pioneer reserves the right, upon notice to S&W, to reasonably adjust fees and costs of Services affected by such restrictions in accordance with the Cost Principles.

3.06.   EXCLUSIONS

  1. Except as otherwise set forth in the SLAs or otherwise implemented in accordance with Section 2.01(f) (Modifications or Upgrades), S&W will not receive, as part of the Services: (1) enhancements to any computer applications; (2) program source code; (3) specifications other than data and file specifications needed to enable S&W to migrate from Pioneer's systems; (4) data flow diagrams; (5) training; (6) database creation statements; (7) documentation other than that otherwise available to Pioneer's businesses in the form and format generally available; (8) consultation on creating, installing or customizing new applications, computer, telecommunications or security systems subsequently developed or implemented by S&W; (9) addition of new electronic links to trading partners; (10) software upgrades or additions, hardware upgrades or systems compliance audits unless otherwise performed by Pioneer in the normal course of supporting Pioneer business needs; (11) migration planning services; (12) new or renewed licenses for any software used directly by S&W; or (13) new projects commenced after the Effective Time.
  2. Pioneer will not provide disaster recovery services except as otherwise explicitly provided for in an SLA.
  3. Pioneer shall not be required to provide or reimburse the costs associated with wireless telephone service and/or equipment supplied, purchased or distributed by any wireless telephone provider as part of the Services provided herein. For the avoidance of doubt, S&W shall be liable and responsible for any and all costs, charges, and fees associated with wireless telephone services and/or equipment (including all new and existing lines of services activated in the name of Pioneer or its Affiliates) as of the Effective Time.

3.07.   S&W OBLIGATIONS

  1. S&W shall provide functionality testing to confirm non-impact on S&W's computers, software, and computer systems, and S&W's ability to receive, Services during any of Pioneer's computer software, hardware, telecommunications or security upgrades. S&W will promptly report to Pioneer the results of such functionality testing.
  2. S&W shall provide all equipment necessary for accessing, inputting and receiving output from computer software and hardware provided by Pioneer as part of this Agreement.
  3. S&W will engage in studies and forecasting ( "Demand Forecasting" ) with respect to user access of computer software, hardware, telecommunications, and security systems hereunder, including new workload demand requests and migration planning efforts. S&W will promptly report to Pioneer the results of such Demand Forecasting.
  4. S&W will provide physical security for and access to Pioneer at all S&W's physical premises to all computer hardware, infrastructure, networking, data systems and security systems, including any writing closets and PBX equipment provided as part of the

12


    Services that will reside on S&W's property or facilities. Access to this equipment facility will be limited to Pioneer, Pioneer's Affiliates, Pioneer's third party agents and contractors performing support for the equipment, unless otherwise agreed in writing.

  1. S&W shall not install its own or third party software into the computer systems of Pioneer, its Affiliates, its third party agents or contractors, or make modifications to software code on such systems, without the prior written permission of Pioneer or the appropriate Affiliate, third party agent or contractor. S&W will be required to pay any resultant licensing fees for such installation.
  2. S&W shall not, except in accordance with previous written authorization from Pioneer, allow its computer network provided as a part of the Services to be connected to: (1) the internet or any third party network in any manner other than through Pioneer's network, or (2) any wireless access point.
  3. S&W shall comply with all (1) aspects of Pioneer's privacy policy as revised from time to time, and (2) physical and electronic security requirements and conditions for Pioneer and its Affiliates network and computer system access and usage. The DuPont Electronic Access Agreement ( "DEAA" ) (attached hereto as Exhibit B ) is deemed executed by the Parties hereto upon the execution of this Agreement. S&W shall execute and cause other Persons under its control to execute the DEAA as such become amended from time to time. In the event S&W or permitted subcontractors or permitted agents of S&W discover or are notified of a breach or potential breach of security, S&W shall immediately notify the appropriate Pioneer representative of such breach or potential breach. In addition to the foregoing, S&W will review and adhere to the DuPont Information Security Organization ( "DISO" ) Policies and Standards. Both Parties agree to comply with applicable Legal Requirements with respect to data collection and privacy. To the extent that any of the foregoing DISO Policies or procedures of Pioneer shall be updated or otherwise amended from time to time, notification shall be delivered by Pioneer to S&W within a commercially reasonable time, provided that such notification shall not be provided any earlier than similar notification is presented to Pioneer's own businesses.
  4. S&W shall require all Persons that are individual users of the Services to consent to and/or acknowledge their respective obligations to comply with Pioneer's acceptable computer usage and privacy policy applicable to Pioneer's own employees, and shall secure all legally-required consents and/or acknowledgements to permit Pioneer to monitor all usage of the Services by such individual users as permitted by such policy.
  5. Subject to Pioneer's right to restrict or deny network or computer system access and usage to S&W as otherwise provided in this Agreement, upon expiration of the Term of this Agreement, the DEAA shall terminate and Pioneer shall revoke all network and computer system access and usage rights of S&W provided in this Agreement.
  6. Upon Pioneer's request, S&W shall deliver to Pioneer a written certification that software licensed to S&W under Section 3.02 (S&W's Limited Use Rights) has been removed from all S&W equipment.

13


ARTICLE 4. COMPENSATION

4.01.   CONSIDERATION

  1. Service Fees . As consideration for Pioneer providing the Services in accordance with this Agreement, S&W shall pay to Pioneer the sum of the amounts specified in this Agreement and in each SLA in effect during the relevant period (the "Service Fees" ). The Parties acknowledge that the Service Fees may not include, and S&W agrees to pay, certain amounts that were direct billed prior to the Effective Time by third party agents or contractors of Pioneer in connection with the Services.
  2. Consent Costs . Pioneer shall use commercially reasonable efforts to obtain necessary third-party consents. S&W shall be responsible to pay or to reimburse Pioneer for all costs and expenses incurred in connection with obtaining such third-party consents in accordance with Section 2.05(a) (Obligation to Obtain Consents).
  3. Residual Costs . Upon the termination of any specific Service, S&W shall pay to Pioneer all Residual Costs associated with the termination of such Service.
  4. Expenses . In addition to the Service Fees set forth in the SLAs, S&W shall reimburse Pioneer for any necessary expenditures made on behalf of S&W pursuant to any applicable SLA (the " Expenses" ).

4.02.   TAXES

  1. Tax Obligations . The Service Fees referred to in Section 4.01(a) (Service Fees) do not include any Taxes, duties, imposts, charges, fees or other levies, of whatever nature assessed on the provision of Services. All the aforementioned Taxes, charges, and fees imposed by applicable Legal Requirements (including Taxes on services, sales and use Taxes, and value added Taxes) assessed on the provision of the Services (other than income Taxes payable by Pioneer on the Service Fees it receives hereunder) shall be the responsibility of S&W in addition to the Service Fees payable by S&W in accordance with Section 4.01(a) (Service Fees).
  2. Payment of Taxes . S&W shall pay or reimburse Pioneer on a net 30 basis from the date of invoice, any and all Taxes, duties, imposts, charges, fees, or other levies, of whatever nature assessed on the provision of the Services (other than income Taxes payable by Pioneer on the Service Fees it receives hereunder), and interest and penalties related thereto to the extent such interest or penalties are related to the actions or inactions of S&W, imposed on Pioneer or its Affiliates or which Pioneer shall have any obligation to collect with respect to or relating to this Agreement or the performance by Pioneer of its obligations hereunder. Notwithstanding the foregoing, S&W agrees to use commercially reasonable efforts to provide exemption certificates where available and to calculate any applicable sales and use Taxes and to make payment thereof directly to the appropriate Governmental Body.

4.03.   INVOICES

No later than the fifteenth (15 th ) calendar day of each calendar month or, if such day is not a Business Day, the next Business Day following the fifteenth (15 th ) calendar day of such

14


calendar month, Pioneer and each Affiliate having provided Services will provide to S&W, with respect to all Services provided by such entity, an invoice covering the Service Fees, Taxes, Residual Costs and any costs and fees described in Section 2.04(a) , if any, owed by S&W with respect to the Services provided and costs or Expenses incurred or paid with respect to Services during the previous calendar month. All invoices shall be sent to S&W at the address specified in Section 13.03 (Notices), provided that S&W may change the address for invoices upon thirty (30) days prior written notice.

4.04.   REIMBURSEMENT OF EXPENSES

Pioneer shall, at its election, (i) make disbursements from its own funds for Expenses and then invoice said Expenses directly to S&W, which invoice shall be payable on a net 30 basis from the date of invoice, or (ii) upon prior written notice to S&W, require S&W to advance Expenses prior to Pioneer's incurring the same.

4.05.   PAYMENT

  1. Invoice Remittance . Any invoice issued under Section 4.03 (Invoices), shall be payable by S&W on a net 30 basis from the date of invoice, without demand and without any deduction, set-off, withholding or abatement whatsoever (except as provided in Section 4.05(b) (Disputed Amounts) herein), the full amount of Service Fees and Expenses due unless the amount due is disputed, in which event the dispute shall be resolved in accordance with the terms of Section 4.05(b) (Disputed Amounts). All payments hereunder shall be made by electronic funds transmission or other mutually agreeable means denominated in United States Dollars or as otherwise specified in the relevant SLA. Payments due on any day other than a Business Day shall be due on the next succeeding Business Day. If needed, the Parties will implement arrangements to provide for electronic funds transfer on customary terms, with written confirmation, for such transfers.
  2. Disputed Amounts . If S&W disputes in good faith the accuracy of any portion of an invoice, S&W shall pay all undisputed portions of such invoices and shall deliver a written statement to Pioneer no later than the date payment is due on the disputed invoice, which statement shall include: (i) the specific amount of the dispute, and (ii) a reasonably detailed written description which defines the scope of the dispute and any evidence which supports the validity of the amount disputed. Invoice items not so disputed shall be deemed accepted and shall be paid, notwithstanding disputes on other items in such invoice, within the period set forth in Section 4.05(a) (Invoice Remittance). Pioneer shall, at its election, direct S&W to remit payment on: (i) the undisputed portion of an outstanding disputed invoice, or (ii) a newly issued invoice from Pioneer covering only the undisputed portion of such disputed invoice. The Parties shall seek to resolve all such invoice disputes expeditiously and in good faith. Upon resolution of such invoice disputes, S&W shall promptly pay the agreed-upon amount of the resolved dispute to Pioneer together with interest on a daily basis equal to: (i) one and one-half percent (1 ½ %) per month of the agreed-upon amount of the resolved dispute, or (ii) the maximum amount allowed by Legal Requirements, whichever is lower.
  3. Late Payments . Subject to the provisions of Section 4.05(b) (Disputed Amounts), all invoices paid after the applicable due date will be assessed a late payment service charge on a daily basis equal to: (i) one and one-half percent (1½%) per month

15


    of the amount of such unpaid invoice, or (ii) the maximum amount allowed by Legal Requirements, whichever is lower.

  1. Discontinuation of Service . Subject to the provisions of Section 4.05(b) (Disputed Amounts) hereof, if any amount due and payable to Pioneer pursuant to this Section 4.05 is not paid by S&W within thirty (30) days after the invoice date, Pioneer may notify S&W in writing (including through email) of S&W's payment default. If S&W has not cured such payment default within thirty (30) days of Pioneer's notification of such payment default, Pioneer shall have the right, in its sole and absolute discretion and without any resulting liability to S&W or to anyone claiming by or through the S&W because of such action to: (i) cease providing either all of the Services, or any such Service(s) or Interdependent Services (as provided in Section 6.04 ) for which payment has not been made, or (ii) notwithstanding the provisions of Article 6 (Termination) hereof, terminate the relevant SLA, and such termination shall be without prejudice to any other remedy which may be available to Pioneer, or (iii) change payments terms to payment in advance. Pioneer's exercise of its rights under this Section 4.05(d) shall not limit or otherwise affect Pioneer's right to terminate this Agreement in accordance with Article 6 (Termination).

4.06.   NO OFFSET

Regardless of any other rights under any other agreements or Legal Requirements and notwithstanding anything to the contrary contained herein, S&W shall not have the right to set off any Claim it may have or reduce its payment under this Agreement except as expressly provided in Section 4.05(b) (Disputed Amounts).

ARTICLE 5. CONFIDENTIALITY

5.01.   CONFIDENTIAL INFORMATION

"Confidential Information" means all proprietary technical, economic, environmental, operational, financial and/or other business information or material of one party which, following the Effective Time in the course of providing or receiving services hereunder, has been disclosed by Pioneer or its Affiliates, on the one hand, or S&W or its Affiliates, on the other hand, in written, oral (including by recording), electronic, or visual form to, or otherwise has come into the possession of, the other, except to the extent that such information can be shown to have (1) already known at the time of its receipt by the receiving party, as shown by its prior written records, (2) properly in the public domain through no fault of the receiving party, (3) disclosed to the receiving party by a third party who may lawfully do so, or (4) independently developed by or for the receiving party without use of the disclosing party's Confidential Information.

5.02.   OBLIGATIONS

Until the later of (i) five (5) years following the Effective Time and (ii) five (5) years from the date that such information was disclosed hereunder, a Party shall not, and shall cause its Affiliates not to, use in any manner, for its own account or for the account of others, or divulge to any third party any Confidential Information of the other Party; provided, however, that the foregoing restrictions shall not apply to disclosures made by a Party or its Affiliates necessary to comply with Legal Requirements or with respect to litigation or potential litigation, the making of, or defense against, a claim for indemnification, or the performance under this Agreement.

16


5.03.   DISCLOSURE

In the event that a Party or any of its Affiliates is requested or required (by oral demand or similar process) to disclose any Confidential Information, the Party subject to such request (the "Disclosing Party" ) will notify the other Party (the "Non-Disclosing Party" ) promptly of the request or requirement so that the Non-Disclosing Party may seek an appropriate protective order or waive compliance with this provision. If, in the absence of a protective order or the receipt of a waiver hereunder, the Disclosing Party, is, on the advice of internal or external legal counsel, compelled to disclose any Confidential Information to any tribunal or else stand liable for contempt or other official penalties, the Disclosing Party may disclose the Confidential Information to the tribunal; provided , however , that if so compelled, the Disclosing Party shall disclose only such portion of the Confidential Information required to be disclosed; provided , further , that the Disclosing Party shall use its best efforts to obtain, at the request of the Non- Disclosing Party, an order or other assurance that confidential treatment will be afforded to such portion of the Confidential Information required to be disclosed as the Non-Disclosing Party shall designate.

5.04.   RIGHTS LIMITED TO AGREEMENT

Except for the right to use Confidential Information for the specific purposes of this Agreement, this Agreement conveys no rights (including with respect to use) in the Confidential Information.

5.05.   SEPARATE AGREEMENTS

Confidentiality obligations provided for in any agreement between Pioneer or any of its Affiliates, or S&W or any of its Affiliates, on the one hand, and any employee of Pioneer or any of its Affiliates, or S&W or any of its Affiliates, on the other hand, shall remain in full force and effect. Nothing herein shall be construed as requiring the Parties to renegotiate terms of agreements in place with contractors, consultants, suppliers, vendors and customers as of the Effective Time.

ARTICLE 6. TERMINATION

6.01.   DEFAULT

Subject to Section 4.05(d) (Discontinuation of Service) and Article 12 (Force Majeure), if any Party (the "Defaulting Party" ) shall fail to perform or default in any material respect in the performance of any of its obligations under this Agreement or any Exhibit or SLA hereto, Pioneer (in the case of a failure or default by S&W) or S&W (in the case of a failure or default by Pioneer) (each, a "Non-Defaulting Party" ) may give written notice to the Defaulting Party specifying the nature of such failure or default and stating that the Non-Defaulting Party intends to terminate this Agreement or any affected SLA if such failure or default is not cured within thirty (30) days of such written notice. If any failure or default so specified is not cured within such thirty (30) day period, the Non-Defaulting Party may elect immediately to terminate this Agreement or any affected SLA. If any failure or default is not capable of cure within the respective cure period, the Non-Defaulting Party may elect immediately to terminate the affected SLA. Any termination as provided herein shall be effective upon giving a written notice of termination from the Non-Defaulting Party to the Defaulting Party following the respective cure

17


period (if applicable) and shall be without prejudice to any other remedy which may be available to the Non-Defaulting Party against the Defaulting Party.

6.02.   INSOLVENCY EVENT

Notwithstanding anything to the contrary contained herein, if a Party (i) files for bankruptcy, (ii) becomes or is declared insolvent, or is the subject of any Proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer, (iii) enters into any reorganization, composition or arrangement with its creditors (other than relating to a solvent restructuring), (iv) makes an assignment for the benefit of all or substantially all of its creditors, or (v) takes any corporate action for any winding-up, dissolution, liquidation or administration (other than for the purpose of or in connection with any solvent amalgamation or reconstruction), then Pioneer (in the case of S&W) or S&W (in the case of Pioneer) may, without prejudice to its other rights hereunder, terminate this Agreement forthwith by written notice. Without limiting the foregoing, Pioneer may, without prejudice to its other rights hereunder, terminate this Agreement forthwith by written notice upon the occurrence of default or an event which, with the giving notice or passage of time, or both, would result in an event of default with respect to any outstanding indebtedness of S&W or any of its Affiliates.

6.03.   VOLUNTARY TERMINATION OF SLA

S&W may terminate any SLA by giving Pioneer advance written notice of its desire to terminate such SLA that satisfies the Required Notice Period set forth in such SLA; provided that: (1) the termination of any SLA shall only be effective on the last day of a calendar month (unless otherwise set forth in any applicable Exhibit or SLA); and (2) S&W shall pay to Pioneer all Residual Costs as set forth in Section 4.01(c) (Residual Costs). If any SLA is terminated by S&W as described herein, S&W may not reinstitute such SLA absent Pioneer's prior written agreement. The notice of termination of an SLA by S&W shall be (i) sufficiently specific as to identify the particular SLA for which any such termination shall apply, and (ii) irrevocable by S&W upon receipt by Pioneer. For the avoidance of doubt and notwithstanding anything to the contrary contained herein, S&W must terminate any SLA as a whole and is not entitled to partition or otherwise terminate in part any SLA that would result in lower scope constituent services with reduced service fees.

6.04.   INTERDEPENDENT SERVICES

If a Service is terminated for any reason, including pursuant to Article 5 (Termination), which Pioneer reasonably determines to be interdependent with a different Service under this Agreement (each, an "Interdependent Service") , and such termination causes Pioneer's cost of providing an Interdependent Service to increase, Pioneer is excused from providing such Interdependent Service unless S&W agrees to pay the revised fees and Expenses for such Interdependent Service as established in accordance with the Cost Principles. Within thirty (30) days following Pioneer's receipt of a notice of termination of a Service, Pioneer will advise S&W which other Services, if any, are Interdependent Services and the revised fees and Expenses for continuation of such Interdependent Services. S&W shall notify Pioneer within ten (10) days of receipt of an Interdependent Services determination from Pioneer whether (i) S&W agrees to the revised fees and Expenses of any Interdependent Service(s), or (ii) such Interdependent Service(s) should be terminated. Unless S&W agrees to pay the revised fees and

18


Expenses under (i), Pioneer shall have no obligation to provide such Interdependent Service(s) as of the date that the corresponding Service is terminated. Notwithstanding anything to the foregoing to the contrary, S&W shall not be relieved from its obligation to comply with the Required Notice Period set forth in any SLA for any Service or Interdependent Service.

6.05.   PUBLIC UTILITY STATUS

Notwithstanding anything contained to the contrary herein, should Pioneer be determined to be a public utility or should Pioneer determine in good faith based on the advice of counsel that there is a material risk of it being deemed a public utility (each such event, a "Public Utility Event" ), Pioneer may terminate the relevant Services or parts thereof, upon written notice to S&W and Pioneer shall not be in breach hereunder as a result of such termination. Notwithstanding the foregoing, in the event that Pioneer receives an order from any Governmental Body requiring Pioneer to cease providing a Service, Pioneer shall immediately notify S&W of such occurrence and may terminate such Service consistent with the time period set forth in such order.

6.06.   EFFECT OF TERMINATION

S&W specifically agrees and acknowledges that all obligations of Pioneer to provide each respective Service shall immediately cease upon the expiration of the Service Term for such Service. Pioneer shall have no obligation to recommence the provision of any Service to S&W once any Service is not renewed or terminated under this Agreement. Further, upon the cessation of Pioneer's obligation to provide any Service, S&W shall immediately cease using, directly or indirectly, such Service (including any and all Pioneer software or third party software provided through Pioneer's computer systems or equipment). In the event that any Service is continued beyond such date, the Parties agree that S&W shall be responsible to Pioneer for such continued Services, including any third party costs incurred by Pioneer as a result of such continued use, but in no event at an amount less than one and one half (1.5) times the Service Fees and Expenses relating to such Service.

6.07.   SURVIVAL OF PAYMENT OBLIGATIONS

Notwithstanding anything to the contrary contained herein, termination of this Agreement or any SLA shall not affect S&W's obligation to pay any amount then owed to Pioneer (and amounts that become due and payable pursuant to the terms hereof after the applicable termination date) or a third party hereunder, including any Residual Costs or any fees charged by third parties in connection with such termination of any Service.

6.08.   SETTLEMENT OF ACCOUNTS

Upon termination of any SLA, the Parties shall take all steps as may reasonably be required to complete any final settlement of accounts owing hereunder between them with respect to such SLA (if any). Upon the termination of this Agreement, there will be a final accounting and each Party shall pay to the other Party any amounts owed to the other Party in accordance with the payment terms set forth in this Agreement.

19


ARTICLE 7. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES

7.01.   LIMITATION OF LIABILITY

  1. Liability . Neither Party nor its Affiliates, agents, employees, or subcontractors, if any, shall be liable for any or all Claims and/or Damages (including settlements, judgments, court costs and reasonable attorneys' fees) of any nature whatsoever arising out of this Agreement, whether such Claims and/or Damages arise on account of the furnishing or accepting of Services hereunder, the failure to furnish or accept Services, or otherwise; except as expressly provided in Section 7.01(b) (Limitation of Damages), Section 7.02 (Limited Liability Exclusions), Article 8 (Indemnification) and Article 11 (Equipment).
  2. Limitation of Damages . If either Party suffers Damages arising out of this Agreement or any SLA, which Damages were caused by the Willful Breach of the other Party, the sole liability of such Breaching Party, shall be (i) if the Breaching Party is the Party that performed the Service, to refund the cost and Service Fees of the relevant Service paid for but not properly performed, or (ii) if the Breaching Party is not the Party that performed the Service, to pay the Service Fees and Expenses if not otherwise paid. SUBJECT TO THE LEGAL REQUIREMENTS OF ANY JURISDICTION THAT CANNOT BE VARIED BY CONTRACT, in no event shall EITHER PARTY be liable for punitive, exemplary, special, indirect, incidental, or consequential Damages (including Damages for diminution in value, loss of business reputation, loss of business profits, business interruption, facility shutdown or non- operation, loss of data or any other loss) arising from or relating to any Claim made under this Agreement or regarding the provision OR RECEIPT of or the failure to provide OR RECEIVE Service(s) hereunder, whether or not caused by or resulting from negligence, INCLUDING gross negligence, or breach of obligations hereunder; even if THE BREACHING PARTY had been advised or was aware of the possibility of such Damages.

7.02.   LIMITED LIABILITY EXCLUSIONS

  1. THE LIMITATION OF DAMAGES PROVIDED IN SECTION 7.01(B) (LIMITATION OF DAMAGES) SHALL NOT APPLY TO:
    1. FINES OR PENALTIES ASSESSED BY ANY GOVERNMENTAL BODY;
    2. ANY OBLIGATION TO INDEMNIFY UNDER ARTICLE 8 (INDEMNIFICATION) HEREUNDER;
    3. INJURY TO OR DEATH OF ANY PERSON, INCLUDING EMPLOYEES OF PIONEER OR S&W, OR DAMAGES TO ANY THIRD PARTY PROPERTY,
    4. ANY BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER ARTICLE 5 (CONFIDENTIALITY);

20


    1. ANY BREACH OF THE OBLIGATIONS UNDER SECTION 3.04 (SECURITY) , SECTION 3.05 (DATA AND NETWORK RESTRICTIONS AND SECTION 3.07 (S&W OBLIGATIONS);
    2. IMPROPER USE OF OR ACCESS TO THIRD PARTY SOFTWARE; OR
    3. FRAUD.

  1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PIONEER SHALL HAVE NO LIABILITY OF ANY KIND OR NATURE WHATSOEVER (INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES) TO S&W FOR PIONEER'S CEASING TO PROVIDE ANY SERVICE UPON THE EXPIRATION OF THE TERM FOR SUCH SERVICE OR THE PROPER TERMINATION OF THIS AGREEMENT PURSUANT TO ARTICLE 6 (TERMINATION).

7.03.   ADDITIONAL PROVISIONS

  1. Limitations in SLAs . Notwithstanding the provisions of Section 7.01 (Limitation of Liability), Pioneer's liability with respect to certain Services shall be limited further pursuant to any express limitation set forth in the relevant SLA relating to such Services. Any further limitations of liability or indemnities in any section of the relevant SLA will be additive to the limitations in this Article 7 .
  2. Third Party Service Providers . In the event that a third party supplier of Pioneer supplies any Service and S&W informs Pioneer that such Service does not meet the Specification in the applicable section of the relevant SLA, then Pioneer shall use commercially reasonable efforts to work with S&W and the third party supplier to bring the Service within the Specification. Notwithstanding the foregoing, Pioneer shall have no liability in respect of any Service supplied hereunder which fails to meet the applicable Specification as provided in this Section 7.03(b) (Third Party Service Providers).
  3. Mitigation . S&W and Pioneer (as the case may be) shall use their respective commercially reasonable efforts to mitigate the loss and Damage (if any) incurred by it as a result of any breach by another party of that other party's obligations under this Agreement.

7.04.   DISCLAIMER OF WARRANTIES

SUBJECT TO THE LEGAL REQUIREMENTS OF ANY JURISDICTION THAT CANNOT BE VARIED BY CONTRACT, S&W ACKNOWLEDGES THAT ALL IT ASSETS AND EQUIPMENT PROVIDED AS PART OF THE SERVICES IS PROVIDED "AS IS, WHERE IS." PIONEER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE IT ASSETS AND EQUIPMENT PROVIDED AS PART OF THE SERVICES, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER

21


OR NOT PIONEER KNOWS OR HAS REASON TO KNOW ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LEGAL REQUIREMENT, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, PIONEER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE IT ASSETS AND EQUIPMENT WILL BE ERROR-FREE OR FREE OF VIRUSES OR OTHER SOFTWARE ROUTINES OR DEVICES (E.G., BACK DOORS, TIME BOMBS, TROJAN HORSES, OR WORMS).

ARTICLE 8. INDEMNIFICATION

8.01.   THIRD PARTY

Each Party ( "Indemnifying Person" ) shall, to the extent permitted by any Legal Requirement, indemnify, defend and hold harmless the other Party, and in the case of Pioneer including its Affiliates ( "Indemnified Person" ) from and against any and all third party (and for this purpose, "third party" includes employees of the Parties) Liabilities, Damages, Claims, actions, losses and costs arising out of or relating to its obligations under this Agreement, to the extent such Liabilities, Damages, Claims, actions, losses and costs are caused by or arise out of the Willful Breach or violation of Legal Requirement of or by the Indemnifying Person, its employees or agents. Further, in the event the Parties are jointly at fault or negligent, they agree to indemnify each other in proportion to their relative fault or negligence. The Liabilities, losses and costs covered hereunder include settlements, judgments, court costs, reasonable attorneys' fees, fines, penalties and other litigation expenses.

8.02.   PROCEDURE

Promptly after receipt by an Indemnified Person of notice of the commencement or threatened commencement of any third-party Proceeding against it (a "Third-Party Claim" ), such Indemnified Person shall, if a claim is to be made against the Indemnifying Person under this Article 8 , give written notice containing reasonable detail to the Indemnifying Person of the assertion of such Third-Party Claim. If any Third-Party Claim is brought against an Indemnified Person, the Indemnifying Person may participate in the defense of such Third-Party Claim and, to the extent that it may elect, to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Person. In such event, the Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Indemnified Person under this Article 8 for any fees of other counsel with respect to the defense of such Proceeding; provided , however , that if the Indemnifying Person and the Indemnified Person are both named parties to the Proceeding and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Indemnified Person may participate in such defense with one separate counsel (and one additional separate local counsel) at the reasonable expense of the Indemnifying Person. An election to assume the defense of a Third-Party Claim shall not be deemed to be an admission that the Indemnifying Person is liable to the Indemnified Person in respect of such Third-Party Claim or that the claims made in the Third-Party Claim are within the scope of or subject to indemnification under this Article 8 . If the Indemnifying Person assumes the defense of a Third-Party Claim, then the Indemnified Person may participate in the defense of such Third-Party Claim, including attending meetings, conferences, teleconferences, settlement negotiations and other related events (and to employ counsel at its own expense in connection therewith); provided , it being understood that the

22


Indemnifying Person shall control the defense of such Third-Party Claim. If the Indemnifying Person assumes the defense of any such Third-Party Claim, the Indemnified Person shall cooperate with the Indemnifying Person in the defense of such Third-Party Claim. If the Indemnifying Person assumes the defense of the Third-Party Claim, no compromise or settlement of such claim may be effected by the Indemnifying Person without the Indemnified Person's prior written consent (which shall not be unreasonably withheld, conditioned or delayed) unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person 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 this Article 8 , unless the Indemnifying Person fails to assume and maintain the defense of such Third- Party Claim pursuant to this Section 8.02 . 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 attorney's fees and court costs) incurred by the Indemnifying Person in its defense of such Third-Party Claim.

ARTICLE 9. GOVERNANCE

Pioneer and S&W shall each nominate a representative to act as the primary contact person for the provision of all of the Services (collectively, the "Primary Coordinators" ). The initial Primary Coordinators shall be [**] 1 for S&W and [**] 2 for Pioneer. Pioneer and S&W shall advise each other, upon thirty (30) days prior written notice, of any change in their respective Primary Coordinator. Pioneer and S&W agree that all communications relating to the provision of the Services shall be directed to the Primary Coordinators. No amendment to any SLA nor any increases, reductions or other changes to the scope and extent of the provision of Services shall be effective or binding on the Parties once this Agreement is effective unless agreed to in writing by the Primary Coordinators.

ARTICLE 10. INFORMATION ASSETS

10.01.   INTELLECTUAL PROPERTY OWNERSHIP

  1. Existing Intellectual Property . Except as otherwise expressly provided in this Agreement or any other agreement, each Party shall retain ownership of its and its Affiliates' Intellectual Property and data existing as of the Effective Time and any derivative works, additions, modifications, translations or enhancements thereof created by a Party or its Affiliates pursuant to this Agreement.
  2. Pioneer Intellectual Property . Except as otherwise expressly provided in this Agreement or in any other agreement between Pioneer and any of its Affiliates

_________________________
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.

23


    and S&W and any of its Affiliates, as between Pioneer and S&W, Pioneer shall own and retain all right, title and interest in and to Intellectual Property in the Services and all software, source and object code, and other means created or acquired and employed by Pioneer to provide the Services, specifications, designs, processes, techniques, concepts, improvements, discoveries, and inventions, including any modifications, improvements, or derivative works thereof, created prior to or independently during the Term or any extension thereof ( "Pioneer Intellectual Property" ).

  1. S&W Content . Except as otherwise expressly provided in this Agreement or any other agreement between Pioneer and any of its Affiliates and S&W and any of its Affiliates, as between Pioneer and S&W, S&W shall own and retain all right, title and interest in and to any and all Intellectual Property in and to data or Confidential Information of S&W or its Affiliates, created or provided by S&W or its Affiliates ( "S&W Content" ).
  2. Intellectual Property Rights . To the extent that any Intellectual Property arises out of the performance of this Agreement, then, as between the Parties, Pioneer or one or more of Pioneer's Affiliates, third party agents or contractors, as designated by Pioneer, will own all such Intellectual Property relating to the Services and S&W will own all such Intellectual Property relating to S&W Content unless the Parties otherwise specifically allocate such Intellectual Property in any SLA, or unless the Intellectual Property is a derivative work of software in which one Party owns the Intellectual Property, in which case, such Party will own all such Intellectual Property. Each of the Parties hereby assigns, and shall use commercially reasonable efforts to cause its respective Affiliates, third party agents or contractors to assign, all of its or their respective right, title and interest in and to any such Intellectual Property to the other Party to effect the allocation of such rights as provided in this Section 10.01(d) . Each Party shall, at the other Party's expense, provide reasonable assistance to the other Party in obtaining and enforcing the Intellectual Property as allocated hereunder in all countries in the world. Such assistance shall include execution of all documents reasonably required by the other Party.
  3. Disclaimer . Notwithstanding anything in this Agreement or the SLAs, Pioneer shall not license, assign, transfer, or otherwise provide access to: (1) engineering standards, protocols, processes and policies, including without limitation, engineering guidelines which consist of any "how-to" guidelines for designing, constructing, maintaining or operating facilities; (2) Safety, Health and Environmental policies, standards and guidelines; (3) policies, procedures, methods or configurations for computer systems, networks, environments, applications and system architecture; or (4) any comparable corporate standards, policies and procedures created or developed by Pioneer, except for the limited access to the privacy and network security policies as provided in Section 3.07(g) .

10.02.   RESERVED

ARTICLE 11. EQUIPMENT

Certain Services to be undertaken by Pioneer may require that Pioneer purchase, acquire, provide or otherwise requisition capital or similar equipment into service (e.g., office equipment, lab equipment, specialty equipment, machinery, copiers, forklifts, furnishings and vehicles, which are not purchased or acquired on behalf of S&W) ( "Equipment" ). It is understood that such Equipment may be commissioned from its own assets or acquired from a third party for the

24


sole or partial purpose of this Agreement. S&W agrees to use this Pioneer-supplied Equipment for the intended and disclosed purpose and in accordance with reasonable operating standards as the same may be set forth in any manuals, procedures, or rules provided with or communicated to S&W. Such Equipment will be employed or used solely at the location to which it is initially brought into service under this Agreement. Any Equipment or personal property so provided shall, at Pioneer's direction, be disposed of or surrendered to Pioneer at the end of the applicable Service Term in good and working order and at the location at which it was provided or delivered to S&W. S&W shall be liable to Pioneer or to its third party provider for any damage caused by S&W, its Affiliates, employees, contractors or agents to the Equipment provided by Pioneer.

ARTICLE 12. FORCE MAJEURE

12.01.   EXCUSED PERFORMANCE

The Party affected by a Force Majeure shall be excused from its performance of its obligations under or pursuant to this Agreement if, and to the extent that, performance of such obligations is delayed, hindered or prevented by such Force Majeure. For the avoidance of doubt, a Force Majeure affecting a third party supplier of any Service and any failure by such a supplier to supply (in whole or in part) any Service for any other reason shall constitute a Force Majeure hereunder if, and to the extent and for as long that such event or failure directly prevents, hinders or delays Pioneer in the performance of its obligations hereunder. A Force Majeure shall not apply to the making of any payment due hereunder.

12.02.   NOTIFICATION

If a Party is affected by Force Majeure, it shall notify the other Party in writing promptly of the cause and extent of such non-performance or likely non-performance, the date or likely date of commencement thereof and the means proposed to be adopted to remedy or abate the Force Majeure; and the Parties shall without prejudice to the other provisions of this Article 12 consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure.

12.03.   OBLIGATIONS OF EXCUSED PARTY

The Party subject to Force Majeure shall act as follows:

  1. The affected Party shall coordinate with the other Party, shall keep the other Party regularly informed during the course of the Force Majeure as to when resumption of performance shall or is likely to occur, and shall use commercially reasonable efforts to remedy or abate the Force Majeure; provided , however , that nothing in this Agreement shall require a Party to settle or compromise any strike or labor dispute.

25


  1. The affected Party shall resume performance within a reasonable time after (i) termination of the Force Majeure or (ii) the Force Majeure has abated to an extent, that permits resumption of such performance in the affected Party's reasonable discretion.
  2. The affected Party shall notify the other Party when the Force Majeure has terminated or abated to an extent, that permits resumption of performance to occur in the affected Party's reasonable discretion.

12.04.   NO LIABILITY

If the Party affected by Force Majeure complies with the provisions of this Article 12 , it shall not be liable for any failure to perform its obligations under this Agreement arising from such Force Majeure.

12.05.   SUBSTITUTE SERVICES

S&W may permanently terminate a Service affected by a Force Majeure on the later of: (i) thirty (30) days after the date on which S&W notifies Pioneer that it intends to exercise its right to obtain permanent substitute Service and (ii) any later date of termination specified in such notice; and only in the event that such Force Majeure continues through such date in the affected Party's discretion; provided that such notice shall be irrevocable upon receipt. Upon such termination, Pioneer will have no further obligation to provide and S&W shall have no further obligation to accept such Service(s) and all costs associated with such Service(s) shall cease to accrue.

ARTICLE 13. MISCELLANEOUS

13.01.   ASSIGNMENTS; SUCCESSORS AND NO THIRD PARTY RIGHTS

Neither Party may assign or otherwise transfer this Agreement without the consent of the other, except that Pioneer may, without such consent, assign this Agreement to (i) any purchaser of all or substantially all of the assets in the line of business to which this Agreement pertains, or to any successor corporation that results from reincorporation, merger, consolidation or similar transaction of such Party with or into such purchaser or such corporation, or (ii) any Affiliate of Pioneer; provided , however , that such transferee shall be bound by all of the terms and conditions of this Agreement. 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 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 13.01 shall be void.

13.02.   ENTIRE AGREEMENT AND MODIFICATION

This Agreement together with the attached Exhibits , Schedules , and SLAs supersedes all prior agreements between the Parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the Primary Coordinators of the Parties.

26


13.03.   NOTICES

All invoices, 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) sent by facsimile or e-facsimile transmission (with written confirmation of receipt), (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), or (d) solely with respect to invoices, sent by electronic mail (with written confirmation of receipt), 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 Pioneer :

Pioneer Hi-Bred International, Inc.
Attention: [**] 3
DuPont Pioneer
8305 N.W. 62 nd Avenue
Johnston, IA 50131

With a copy to:

Pioneer Hi-Bred International, Inc.
Attention: [**] 4
DuPont Pioneer
6900 N.W. 62 nd Avenue
Johnston, IA 50131- 0256

If to S&W :

S&W Seed Company
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727

 

 

 

All invoices, notices, consents, requests, approvals, and other communications provided for or required herein, and all legal process in regard thereto shall be simultaneously delivered to each of the Primary Coordinators at the address set forth above for the Party who appointed such Primary Coordinator unless changed as provided herein. Either Party may change its Notice or Primary Coordinator address, facsimile number or email address by giving the other Party at least thirty (30) days' written notice of its new address or facsimile number in the manner set forth above.

13.04.   EXPENSES

Whether or not the transactions contemplated by this Agreement are consummated, and except as otherwise expressly set forth herein, all costs and expenses (including legal fees, accounting fees and filing fees) incurred in connection with the transactions contemplated by this Agreement shall be paid by the Party incurring such expenses.

_________________________
3 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

27


13.05.   DISPUTE RESOLUTION; Governing Law ; jURISDICTION

  1. Any dispute between the Parties arising out of or relating to this Agreement, or the interpretation, validity or effectiveness of this Agreement, or any provision of this Agreement, in the event the Parties fail to agree, shall, upon the written request of a Party, be referred to designated senior management representatives of the Parties for resolution. Such representatives shall promptly meet and, in good faith, attempt to resolve the controversy, claim or issues referred to them.
  2. If such representatives do not resolve the dispute within thirty (30) days after the dispute is referred to them, the dispute shall be settled by binding arbitration, in accordance with the Center for Public Resources ( "CPR" ) Rules for Non-Administered Arbitration of Business Disputes. For disputes in which the amount in controversy is less than or equal to U.S. $1,000,000, the Parties shall mutually select one (1) neutral arbitrator who shall be qualified by experience and training to arbitrate commercial disputes. If the Parties cannot agree on an arbitrator or if the amount in controversy exceeds U.S. $1,000,000, such dispute shall be settled by three (3) arbitrators who shall be qualified by experience and training to arbitrate commercial disputes, of whom each Party involved in the arbitration shall appoint one (1), and the two (2) appointees shall select the third (3 rd ), subject to meeting the qualifications for selection. If the Parties have difficulty finding suitable arbitrators, the parties may seek assistance of CPR and its CPR Panels of Distinguished Neutrals. Judgment upon the award or other remedy rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be in Wilmington, Delaware. The arbitrators shall apply the substantive law of the State of Delaware, without regard to its conflicts of laws principles, and their decision thereon shall be final and binding on the parties. Discovery shall be allowed in any form agreed to by the Parties, provided , that if the Parties cannot agree as to a form of discovery (i) all discovery shall be 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 Pioneer and fifty percent (50%) by S&W. 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 13.03 (as such address may be updated from time to time in accordance with the terms of Section 13.03 ). Any arbitration contemplated by this Section 13.05 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 13.03 (as such address may be updated from time to time in accordance with the terms of Section 13.03 and Article 9 ) and such demand letter shall state the amount of relief sought by the party making the demand.
  3. All Proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the parties to each other or to the arbitration panel in connection with this Section 13.05 shall be deemed to be in furtherance of settlement negotiation and shall be privileged and confidential, and shielded from production in other Proceedings except as may be required by Legal Requirements.

28


  1. This Agreement shall be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement. The Parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such Proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 13.03 (as such address may be updated from time to time in accordance with the terms of Section 13.03 and Article 9 ).
  2. The Parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the Parties.
  3. Notwithstanding anything to the contrary in this Section 13.05 , either Party to this Agreement may seek, in the State or Federal courts in the City of Wilmington, Delaware, interim or provisional injunctive relief (or similar equitable relief) to maintain the status quo until such time as the designated senior management representatives of the Parties resolve a dispute referred to them or an arbitration award or other remedy is entered in connection with such dispute pursuant to this Section 13.05 and, by doing so, such Party does not waive any right or remedy available under this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall entitle S&W to any form of injunctive or equitable relief requiring Pioneer to re-perform any non-conforming or deficient Service.

13.06.   NO IMPLIED WAIVER; 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. No waiver or discharge of any Claim or right under this Agreement shall be valid unless in writing and executed by the Party against whom such change, waiver or discharge is sought to be enforced, and is signed by the Primary Coordinator of each of the Parties. Any other attempted discharge or waiver shall have no effect, regardless of its form. 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.

13.07.   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.

29


13.08.   SECTION HEADINGS; CONSTRUCTION

The headings of Articles and Sections in this Agreement and the headings in the 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. In this Agreement, with respect to the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding." Unless otherwise expressly provided, the words "including", "include" and "includes" do not limit the preceding words or terms. 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. 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.

13.09.   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.

13.10.   RELATIONSHIP OF THE PARTIES

In all matters relating to this Agreement, the Parties will be acting solely as independent contractors and will be solely responsible for the acts of their employees, officers, directors and agents. Employees, agents or contractors of one Party shall not be considered employees, agents or contractors of the other Party. S&W shall not have the right, power or authority to create any obligation, express or implied, on behalf of the Pioneer. Pioneer shall not have the right, power or authority to create any obligation, express or implied, on behalf of S&W, except when S&W expressly appoints Pioneer as S&W's agent in writing, and Pioneer accepts such appointment in writing.

13.11.   CONFLICT

In the event of a conflict between the terms and conditions of this Agreement and any SLA, the terms and conditions of this Agreement shall govern, unless such SLA contains a conflicting term or condition expressly stated in the relevant section of the applicable SLA, in which case the term or condition of such SLA shall govern. In the event of a conflict between the provisions of this Agreement and the provisions of the Purchase Agreement, the provisions of this Agreement shall govern solely with respect to the subject matter hereof. In the event of a

30


conflict between the provisions of this Agreement and the provisions of any of the DEAA and/or the DISO Policies and Standards, the provisions of the DEAA and/or the DISO Policies and Standards, as applicable, shall govern. In the event of a conflict between the terms and conditions of the final English version of this Agreement and the terms and conditions of any non-English version of this Agreement, the terms and conditions of the final English version shall control.

13.12.   SURVIVAL OF CERTAIN PROVISIONS

Without prejudice to the survival of the provisions of any other agreements of the Parties, the Parties expressly agree that the provisions of Article 3 (Information Systems and Support); Article 5 (Confidentiality); Section 6.06 (Effect of Termination); Section 6.07 (Survival of Payment Obligations); Article 7 (Limitation of Liability and Disclaimer of Warranties); Article 8 (Indemnification); Article 10 (Information Assets); and this Article 13 (Miscellaneous) shall survive any termination or expiration of this Agreement.

13.13.   NO PUBLIC UTILITY

It is understood that no Party hereto considers the other Party to be a public utility, and no Party intends by this Agreement to engage in the business of being a public utility or to enjoy any of the powers and privileges of a public utility or, by its performance of its obligations hereunder to dedicate to public or quasi-public use or purpose any of the facilities which it operates, and each Party agrees that the execution of this Agreement shall not, nor shall any performance or partial performance, be or ever deemed, asserted or urged by a Party to be a dedication to public or quasi-public use of any such facilities of the other Party or as subjecting the other Party to any jurisdiction or regulation as a public utility.

13.14.   SUPPLY OF SERVICES

The Parties acknowledge and agree that this Agreement is an agreement for the supply of services and is not an agreement for the sale of goods and shall not be governed by Article 2 of the Uniform Commercial Code or the United Nations International Convention for the Sale of Goods or any analogous Legal Requirement purporting to apply to the sale of goods.

13.15.   COMPLIANCE WITH LEGAL REQUIREMENTS

In performing its obligations, each Party will comply with all federal, state, and local Legal Requirements, ordinances, tariffs, and regulations of Governmental Bodies applicable to such Party.

 

[Signature page follows]

31


IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be executed as of the Effective Time.

 

PIONEER HI-BRED INTERNATIONAL, INC.

By: ___________________________________

Printed Name: _____________________________

Title: __________________________________

 

S&W SEED COMPANY

By: ___________________________________

Printed Name: _____________________________

Title: __________________________________

 

[Signature Page to Information Technology Transition Services Agreement]


EXHIBIT 10.7

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXECUTION VERSION

PROMISSORY NOTE

Up to $15,000,000.00 USD (the "Maximum Loan Amount")

December 31, 2014

This Promissory Note (" Note ") is made and entered into by S&W Seed Company, a Nevada corporation (" Borrower ") in favor and for the benefit of Pioneer Hi-Bred International, Inc., an Iowa corporation (together with any and all of its successors and assigns and/or any other holder of this Note, " Lender ").

WHEREAS, Borrower and Lender are parties to that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the " APSA "), pursuant to which, among other things, Lender agreed to sell to Borrower, and Borrower agreed to purchase from Lender, the "Purchased Assets" (as such term is defined in the APSA) for an aggregate purchase price equal to Thirty Seven Million United States Dollars ($37,000,000), as adjusted pursuant to the terms of the APSA, of which Twenty Seven Million United States Dollars shall be paid in cash at the Closing (as such term is defined in the APSA) and Ten Million United States Dollars shall be paid on the terms and conditions set forth herein;

WHEREAS, pursuant to the terms of the APSA, Borrower may be required to pay to Lender an Earn-Out Payment (as such term is defined in the APSA), which shall total not more than Five Million United States Dollars ($5,000,000), and which amounts shall be paid on the terms and conditions set forth herein;

WHEREAS, as partial consideration for the purchase and sale of the Purchased Assets, and in lieu of paying Ten Million United States Dollars ($10,000,000) of the aggregate purchase price on the date hereof, Borrower agrees to pay to Lender cash in the amount of Ten Million United States Dollars ($10,000,000), on the terms and conditions set forth herein;

WHEREAS, in lieu of paying the Earn-Out Payment on the applicable date set forth in the APSA, Borrower agrees to pay to Lender cash in an amount equal to the Earn-Out Payment, in an aggregate amount up to Five Million United States Dollars ($5,000,000), on the terms and conditions set forth herein;

WHEREAS, Borrower acknowledges and understands that Lender would not have accepted this Note without the mutual agreement and understanding that all obligations arising under this Note are enforceable.

NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the sufficiency of which is hereby admitted, the parties hereby agree as follows:


  1. Total Principal Amount . Borrower acknowledges and agrees that this Note evidences, and is given in consideration for (i) an initial advancement on the date hereof of Ten Million United States Dollars ($10,000,000), which amount constitutes part of the purchase price payable pursuant to the APSA, (ii) an advance on October 31, 2017, of an amount equal to the Earn-Out Payment (but not to exceed Five Million United States Dollars ($5,000,000), which amount is payable by Borrower to Lender pursuant to Section 2.4 of the APSA (the amounts described in this Section 1(i) and (ii) , collectively, the " Total Principal Amount ").
  2. Payments . Borrower agrees to pay Lender (i) annually on December 31 st all accrued but unpaid interest on the Total Principal Amount then outstanding and (ii) the entire balance of the Total Principal Amount then outstanding, plus any remaining interest due hereunder, on December 31, 2017.
  3. Interest Rate . From the date hereof until this Note is paid in full, interest on the Total Principal Amount outstanding hereunder shall be charged at the rate which is at all times equal to three percent (3%) per annum (the " Interest Rate "), compounded annually.
  4. Method of Payment . Any payment by Borrower to Lender hereunder shall be made in immediately available funds in lawful money of the United States of America and shall be paid by wire transfer to the account set forth below.
  5. Payments made with wire transfer shall be sent to:

    [**] 1   

  6. Security; Loan Documents . The obligations of Borrower under this Promissory Note are secured by (i) that certain Security Agreement, dated as of the date hereof (the " Security Agreement "), by Borrower (in its capacity as Grantor) in favor of Lender, (ii) that certain Mortgage, dated as of the date hereof (the " Mortgage "), by Borrower (in its capacity as Mortgagor) in favor of Lender and (iii) that certain Deed of Trust, dated as of the date hereof (the " Deed "), by Borrower (in its capacity as Trustor) in favor of Lender. This Note, the Security Agreement, the Mortgage, the Deed, the APSA (but only with respect to Section 2.4 thereof and any other provisions necessary to give effect thereto) and all other documents now or hereafter securing, guaranteeing or executed in connection with the loan(s) evidenced by this Note (the " Loan "), as the same have been or may be amended, restated, modified or supplemented from time to time, are herein sometimes called individually a " Loan Document " and together the " Loan Documents ."
  7. Certain Definitions . As used herein:
    1. The term " Debtor Relief Law " means any federal, state or local law, domestic or foreign, as now or hereafter in effect relating to bankruptcy, insolvency, liquidation, receivership, reorganization, arrangement, composition, extension or adjustment of debts, or any similar law affecting the rights of creditors.

________________________
1 Omitted and filed separately with the SEC pursuant to a confidential treatment request.

-2-


    1. The term " Indebtedness " means any and all of the indebtedness to Lender evidenced, governed or secured by or arising under this Note or any other Loan Document.
    2. The term " Laws " means all constitutions, treaties, statutes, laws, ordinances, regulations, rules, orders, writs, injunctions, or decrees of the United States of America, any state or commonwealth, any municipality, any foreign country, any territory or possession, or any Tribunal.
    3. The term " Tribunal " means any state, commonwealth, federal, foreign, territorial or other court or governmental department, commission, board, bureau, district, authority, agency, central bank, instrumentality, or any referee or arbitration authority.

  1. Prepayment . Following payment in full of the Working Capital Debt (as such term is defined in that certain Intercreditor and Subordination Agreement dated December 31, 2014 by and among Lender, Wells Fargo Bank, National Association and Hudson Bay Fund LP, in its capacity as collateral agent), Borrower may prepay the unpaid Total Principal Amount, in full at any time or in part from time to time, without fee, premium or penalty, provided that: (a) Lender shall have actually received from Borrower prior written notice of (i) Borrower's intent to prepay, (ii) the amount of principal that will be prepaid (the " Prepaid Principal "), and (iii) the date on which the prepayment will be made; (b) each prepayment shall be in the amount of $1,000 or a larger integral multiple of $1,000 (unless the prepayment retires the outstanding balance of this Note in full); and (c) each prepayment shall be in the amount of 100% of the Prepaid Principal, plus (i) accrued unpaid interest thereon to the date of prepayment, if any, and (ii) any other sums which have become due to Lender under the Loan Documents on or before the date of prepayment but which have not been paid.
  2. Interest . So long as a Default (as defined below) has not occurred, the unpaid Total Principal Amount due hereunder shall bear interest at the Interest Rate. Unless waived by the Lender in writing, upon the occurrence of a Default, interest shall automatically accrue on the then-unpaid Total Principal Amount beginning from the date of such Default and on any other amounts due hereunder beginning from the date such amounts were incurred and interest shall continue to accrue thereafter on any unpaid amounts due hereunder, in each case at the rate of five percent (5%) over the per annum prime rate reported in The Wall Street Journal (or the average prime rate if a high and a low prime rate are therein reported) at the time of Default (the "Default Interest Rate"), compounded quarterly. If The Wall Street Journal does not then or ceases to report a prime rate, the prime rate shall be determined by such alternate method as may be reasonably selected by Lender.
  3. Late Charges . If Borrower fails to make any payment under the terms of this Note within ten (10) days after the date such payment is due, Borrower shall pay to Lender on demand a late charge equal to five percent (5%) of such payment. Such ten (10) day period shall not be construed as in any way extending the due date of any payment. The "late charge" is imposed for the purpose of defraying the expenses of Lender incident to handling such delinquent payment. This charge shall be in addition to, and not in lieu of, any other remedy Lender may have and is in addition to any fees and charges of any agents or attorneys which Lender may employ upon the occurrence of a Default (hereinafter defined) hereunder, whether authorized herein or by law. Borrower will pay this late charge only once on any late payment.

-3-


  1. Certain Provisions Regarding Payments . All payments made on this Note shall be applied, to the extent thereof, to late charges, to accrued but unpaid interest, to unpaid principal, and to any other sums due and unpaid to Lender under the Loan Documents, in such manner and order as Lender may elect in its discretion. All permitted prepayments on this Note shall be applied, to the extent thereof, to accrued but unpaid interest on the amount prepaid and to any other sums due and unpaid to Lender under the Loan Documents, in such manner and order as Lender may elect in its discretion. Except to the extent that specific provisions are set forth in this Note or another Loan Document with respect to application of payments, all payments received by Lender shall be applied, to the extent thereof, to the Indebtedness in such manner and order as Lender may elect in its discretion, any instructions from Borrower or anyone else to the contrary notwithstanding. Remittances in payment of any part of the Indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by Lender in immediately available U.S. funds and shall be made without offset, demand, counterclaim, deduction, or recoupment (each of which is hereby waived) and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practice of the collecting bank or banks.
  2. Borrower's Representations and Warranties . Borrower represents and warrants as follows:
  3. (a) Organization . Borrower is (a) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (b) authorized to do business and in good standing in each jurisdiction in which it conducts business, and (c) possessed of all requisite power and authority to carry on its business.

    (b) Authorization; No Conflict . Each Loan Document executed by Borrower has been duly authorized, executed and delivered by Borrower, and the obligations thereunder and the performance thereof by Borrower in accordance with their terms are and will continue to be within Borrower's power and authority without the necessity of joinder or consent of any other person. The Loan Documents and the consummation of the transactions contemplated hereby and thereby (i) do not and will not result in the creation of any encumbrance against any assets or properties of Borrower or any person liable, directly or indirectly, for any part of the Indebtedness except as expressly provided in such documents and (ii) do not and will not result in any breach, default or event of default by Borrower under any other loan agreement, credit agreement, facility agreement, note, debenture, bond or any similar instrument or agreement.

    (c) Enforceability . The Loan Documents constitute legal, valid and binding obligations of Borrower enforceable in accordance with their terms, except as the enforceability thereof may be limited by Debtor Relief Laws and except as the availability of certain remedies may be limited by general principles of equity.

    (d) No Violation; No Litigation . Borrower is not in material violation of any law, regulation or ordinance, or any order of any court or governmental authority, and to the extent required by applicable law, Borrower has filed all necessary tax returns and reports and has paid all taxes and governmental charges thereby shown to be owing. There is no judicial or

-4-


    administrative action, claim, investigation, inquiry, proceeding or demand pending (or to Borrower's knowledge threatened) against Borrower or against any other person liable directly or indirectly for any part of the Indebtedness challenging the validity, enforceability or priority of any of the Loan Documents.

    (e) Borrower Not a Foreign Person . Borrower is not a "foreign person" within the meaning of the Internal Revenue Code, Sections 1445 and 7701 ( i.e. , Borrower is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined therein and in any regulations promulgated thereunder).

    (f) Business Loan . The Loan is solely for business and/or investment purposes, and is not intended for personal, family, household or agricultural purposes. Borrower warrants that the proceeds of the Note shall be used for commercial purposes and stipulates that the Loan shall be construed for all purposes as a commercial loan.

  1. Borrower's Covenants .
  2. (a) Books and Records . Borrower shall keep books and records concerning its assets, all of its business affairs and transactions in accordance with generally accepted accounting principles.

    (b) Inconsistent Agreements . Borrower shall not enter into any agreement containing any provisions, the performance of which would violate or breach the Borrower's obligations under any Loan Document.

    (c) Compliance with Laws . Borrower shall carry on its business activities in compliance with all applicable federal, state and local laws and all applicable rules, regulations and orders of all governmental bodies and offices having power to regulate or supervise its business activities, except where such non-compliance would not reasonably be expected to (i) have a material adverse effect on Borrower and its subsidiaries, taken as a whole, or (ii) otherwise adversely affect Borrower's ability to make the payments required under the terms of this Note.

    (d) Compliance with Loan Documents . Borrower shall make all payments of interest and principal on the Loan and shall keep and comply with all terms, conditions and provisions of the Loan Documents.

    (e) Conduct of Business . Borrower shall maintain and keep all Collateral (as such term is defined in the Security Agreement) in good repair, working order and condition, ordinary wear and tear excepted, and from time to time make or cause to be made all needed renewals, replacements and repairs.

    (f) Consolidation, Merger, Sale or Disposal of Assets . Borrower shall not without the prior written consent of Lender (a) consolidate or merge into or with any other entity; or (b) sell (other than sales of inventory in the ordinary course of business) transfer, lease, or otherwise dispose of all, or substantially all, of its assets during the term of the Loan. Borrower agrees that, in the event of any such consolidation, merger, sale, transfer, lease or disposal, or the

-5-


    execution of any agreement to do any of the foregoing, in either case without the prior written consent of Lender, Lender shall have the absolute right, without prior demand or notice, to declare all of the Indebtedness immediately due and payable.

    (g) Prohibition Against Distributions . Until all payment and performance obligations relating to the Loan have been paid and performed in full and all obligations of Borrower under the Loan Documents have terminated, Borrower shall not declare or set aside any sums of money or other assets or property for the payment of any dividends and shall not pay any sum of money or other asset or property, on or with respect to any share of capital stock or ownership interest or other equity interest in itself or any subsidiary, whether in the form of equity or debt without the prior written consent of the Lender in its sole and absolute discretion.

  1. Defaults .
    1. It shall be a default (" Default ") under this Note and each of the other Loan Documents if any of the following occur:
    2. (i) any principal, interest or other amount of money due under this Note is not paid in full within ten (10) days of the date when due, regardless of how such amount may have become due;

      (ii) any covenant, agreement or condition herein or in any other Loan Document is not fully and timely performed, observed or kept, subject to any applicable grace or cure periods (which in the case of covenants, agreements or conditions herein shall be 30 days following Borrower's receipt of notice from Lender of failure to so fully and timely perform, observe or keep);

      (iii) Borrower or Grantor (A) executes an assignment for the benefit of creditors, or takes any action in furtherance thereof; or (B) admits in writing its inability to pay, or fails to pay, its debts generally as they become due; or (C) as a debtor, files a petition, case, proceeding or other action pursuant to, or voluntarily seeks the benefit or benefits of, any Debtor Relief Law, or takes any action in furtherance thereof; or (D) seeks the appointment of a receiver, trustee, custodian or liquidator of any significant portion of its property or assets;

      (iv) Borrower or Grantor suffers the filing of a petition, case, proceeding or other action against it as a debtor under any Debtor Relief Law or seeking appointment of a receiver, trustee, custodian or liquidator of its property or assets, and (A) admits, acquiesces in or fails to contest diligently the material allegations thereof, or (B) fails to have the petition, case, proceeding or other action permanently dismissed or discharged on or before the earlier of trial thereon or the sixtieth (60th) day following the date of its filing;

      (v) there shall occur any default or event of default under any other Loan Document, subject in all cases to any applicable grace or cure periods;

-6-


      (vi) there shall occur any breach, default or event of default by Borrower under any other loan agreement, credit agreement, facility agreement, note, debenture, bond or any similar instrument or agreement, or Borrower shall fail to pay when due any indebtedness of Borrower, in each case, that (a) involves a loan agreement, credit agreement, facility agreement, note, debenture, bond or any similar instrument or agreement or other indebtedness with a principal obligation in an amount equal to or greater than $750,000 and (b) results in all or any portion of such obligation becoming or being declared due and payable prior to the date on which it would otherwise become due and payable; or

      (vii) the commencement or existence of any litigation (other than any litigation brought by Lender or any of its affiliates) relating to the Collateral (as such term is defined in the Security Agreement), which litigation is reasonably likely to have a material adverse effect on Lender's security interest in the Collateral, and with respect to which, on or before the sixtieth (60 th ) day following the commencement of such litigation, Borrower fails to either (A) have the litigation dismissed or discharged or (B) provide a bond or other assurances reasonably acceptable to Lender that Lender's security interest in the Collateral is adequately protected.

      Upon the occurrence of a Default, (x) Lender shall have the rights to declare the unpaid Total Principal Amount and accrued but unpaid interest on this Note, and all other amounts due hereunder, at once due and payable (and upon such declaration, the same shall be at once due and payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity and (y) Borrower shall, (I) on or before the ninetieth (90 th ) day following the end of the Borrower's fiscal year end, provide Lender with financial statements and balance sheets of the Borrower and (II) such other information and documentation respecting the condition or operations, financial or otherwise, of the Borrower as Lender may from time to time reasonably request.

    1. All of the rights, remedies, powers and privileges (together, " Rights ") of Lender provided for in this Note and in any other Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Lender to exercise, and no delay in exercising any Right, including the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Acceptance by Lender of any payment in an amount less than the amount then due on any Indebtedness shall be deemed an acceptance on account only. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable at the time of such payment, shall not (i) constitute a waiver of or impair or extinguish the right of Lender to accelerate the maturity of this Note or to exercise any other Right at the time or at any subsequent time, or nullify any prior exercise of any such Right, or (ii) constitute a waiver of the

-7-


      requirement of punctual payment and performance or a novation in any respect, or (iii) in any way excuse the existence of a Default.

    1. If there is a prevailing party in any lawsuit, reference or arbitration arising out of or relating to this Note, the Loan Documents or the Loan, such prevailing party shall be entitled to recover from each other party such sums as the court, referee or arbitrator may ad-judge to be reasonable attorneys' fees in the action, reference or arbitration, in addition to costs and expenses otherwise allowed by law. In addition, if the holder of this Note is the prevailing party in any such lawsuit, reference or arbitration, Borrower agrees to pay all costs and expenses of the holder of this Note which may be incurred in enforcing or protecting the rights or interests of such holder in connection with such lawsuit, reference or arbitration, including attorneys' fees and expenses, investigation costs and all court costs. From the time(s) incurred until paid in full to the holder of this Note, all such sums shall bear interest at the Interest Rate.

  1. GOVERNING LAW . THIS PROMISSORY NOTE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
  2. Jurisdiction . Except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any provision of, or based upon any right arising out of, this Note. The parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such Proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 23 (as such address may be updated from time to time in accordance with the terms of Section 23 ).
  3. Negotiation . The parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the parties.
  4. WAIVER OF JURY TRIAL . 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 NOTE OR ANY OTHER LOAN DOCUMENTS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THE LOAN DOCUMENTS. BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 17 IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. BORROWER FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.

-8-


  1. Heirs, Successors and Assigns . The terms of this Note and of the other Loan Documents shall bind and inure to the benefit of the heirs, devisees, representatives, successors and permitted assigns of the Borrower and Lender. Borrower shall not assign any of its rights or obligations under this Note, in whole or in part, without the prior written consent of Lender (which consent may be granted or withheld in Lender's sole discretion). Lender may, at any time, sell, transfer, or assign this Note and the other Loan Documents and hereby is authorized to disseminate any information it now has or hereafter obtains pertaining to the Loan, including any security for this Note and credit or other information on Borrower, any of its principals and any guarantor of this Note, to any actual or prospective assignee, to any of Lender's affiliates, to any regulatory body having jurisdiction over Lender, and to any other parties as necessary or appropriate in Lender's reasonable judgment.
  2. General Provisions . Time is of the essence with respect to Borrower's obligations under this Note. If more than one person or entity executes this Note as Borrower, all of said parties shall be jointly and severally liable for payment of the Indebtedness. Borrower and all sureties, endorsers, guarantors and any other party now or hereafter liable for the payment of this Note in whole or in part, hereby severally: (a) waive demand, presentment for payment, notice of dishonor and of nonpayment, protest, notice of protest, notice of intent to accelerate, notice of acceleration and all other notices (except any notices which are specifically required by this Note or any other Loan Document), filing of suit and diligence in collecting this Note or enforcing any of the security herefor; (b) agree to any substitution, subordination, exchange or release of any such security or the release of any party primarily or secondarily liable hereon; (c) agree that Lender shall not be required first to institute suit or exhaust its remedies hereon against Borrower or others liable or to become liable hereon or to perfect or enforce its rights against them or any security herefor; (d) consent to any extensions or postponements of time of payment of this Note for any period or periods of time and to any partial payments, before or after maturity, and to any other indulgences with respect hereto, without notice thereof to any of them; and (e) submit (and waive all rights to object) to non-exclusive personal jurisdiction of any state or federal court sitting in the of, and venue in the county in which payment is to be made as specified in the first paragraph of this Note, for the enforcement of any and all obligations under this Note and the Loan Documents; (f) waive the benefit of all homestead and similar exemptions as to this Note; (g) agree that their liability under this Note shall not be affected or impaired by any determination that any security interest or lien taken by Lender to secure this Note is invalid or unperfected; and (h) hereby subordinate any and all rights against Borrower and any of the security for the payment of this Note, whether by subrogation, agreement or otherwise, until this Note is paid in full.
  3. Severability . If any provision of this Note is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Note shall remain in full force and effect. Any provision of this Note held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.
  4. Modification . This Note may not be amended except by a written agreement executed by Borrower and Lender.

-9-


  1. Section Headings; Construction . The headings of Articles and Sections in this Note are provided for convenience only and shall not affect its construction or interpretation. With respect to any reference made in this Note to a Section (or Article , clause or preamble), such reference shall be to the corresponding section (or article, clause or preamble) of this Note. All words used in this Note 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 Note 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 Note 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 Note and (c) the terms and provisions of this Note shall be construed fairly as to all parties hereto, regardless of which party was generally responsible for the preparation of this Note.
  2. Notices; Time . All notices, consents, waivers, and other communications under this Note 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):
  3. If to Lender :

    Pioneer Hi-Bred International, Inc.
    Attention: President
    DuPont Pioneer
    7100 N.W. 62nd Avenue
    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

-10-


    If to Borrower :

    S&W SEED COMPANY
    Attention: Chief Financial Officer
    1974 N. Gateway Blvd., Suite 104
    Fresno, CA 93727
    Fax: (559) 255-5457

  1. No Usury . It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to comply with applicable state law or applicable United States federal law (to the extent that it permits Lender to contract for, charge, take, reserve, or receive a greater amount of interest than under state law) and that this Section 24 shall control every other covenant and agreement in this Note and the other Loan Documents. If applicable state or federal law should at any time be judicially interpreted so as to render usurious any amount called for under this Note or under any of the other Loan Documents, or contracted for, charged, taken, reserved, or received with respect to the Loan, or if Lender's exercise of the option to accelerate any amounts due hereunder, or if any prepayment by Borrower results in Borrower having paid any interest in excess of that permitted by applicable law, then it is Lender's express intent that all excess amounts theretofore collected by Lender shall be credited on the principal balance of this Note and all other indebtedness and the provisions of this Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new documents, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder or thereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the Loan shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the maximum lawful rate from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

.

[ signature page follows ]

-11-


IN WITNESS WHEREOF, Borrower has duly executed this Note as of the date first above written.

WITNESS:

__________________________________
Name:

BORROWER:

S&W SEED COMPANY

By: ___________________________
Nane: ______________________________
Title: ______________________________

 

 

 

-12-


EXHIBIT 10.8

SECURITY AGREEMENT

This SECURITY AGREEMENT (this " Agreement "), dated as of December 31, 2014, is by and between S&W Seed Company, a Nevada corporation (" Grantor ") and Pioneer Hi-Bred International, Inc., an Iowa corporation (" Secured Party ").

W I T N E S S E T H:

WHEREAS , Secured Party has agreed to make a loan to Grantor, which loan is evidenced by that certain Promissory Note, dated as of the date hereof, by Grantor in favor of Secured Party (the " Note ");

WHEREAS , Grantor and Secured Party are parties to that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the " APSA "), pursuant to which, among other things, Secured Party agreed to sell to Grantor, and Grantor agreed to purchase from Secured Party, the "Purchased Assets" (as such term is defined in the APSA) for an aggregate purchase price equal to Thirty Seven Million United States Dollars ($37,000,000), as adjusted pursuant to the terms of the APSA, of which Twenty Seven Million United States Dollars shall be paid in cash at the Closing (as such term is defined in the APSA) and Ten Million United States Dollars shall be paid on the terms and conditions set forth in the Note;

WHEREAS , pursuant to the terms of the APSA, Grantor may be required to pay to Secured Party an Earn-Out Payment (as such term is defined in the APSA), which shall total not more than Five Million United States Dollars ($5,000,000), and which amounts shall be paid on the terms and conditions set forth in the Note;

WHEREAS , as partial consideration for the purchase and sale of the Purchased Assets, and in lieu of paying Ten Million United States Dollars ($10,000,000) of the aggregate purchase price on the date hereof, Grantor agreed to pay to Secured Party cash in the amount of Ten Million United States Dollars ($10,000,000), on the terms and conditions set forth in the Note;

WHEREAS , in lieu of paying the Earn-Out Payment on the applicable date set forth in the APSA, Grantor agreed to pay to Secured Party cash in an amount equal to the Earn-Out Payment, in an aggregate amount up to Five Million United States Dollars ($5,000,000), on the terms and conditions set forth in the Note;

WHEREAS , Grantor has agreed to grant a continuing security interest in and to the Collateral in order induce Secured Party to make the loan to Grantor and to secure the prompt and complete payment, observance and performance of Grantor's obligations under the Note and the other Loan Documents.

NOW, THEREFORE , for and in consideration of the recitals made above and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

  1. Defined Terms . All capitalized terms used herein (including in the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the Note. Any

    terms used in this Agreement that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise defined herein or in the Note; provided , however , that to the extent that the Code is used to define any term herein and if such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern. In addition to those terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:

    1. " Account " means an account (as that term is defined in Article 9 of the Code).
    2. " Account Debtor " means an account debtor (as that term is defined in the Code).
    3. " Agreement " has the meaning specified therefor in the preamble hereto.
    4. " Books " means books and records (including Grantor's Records indicating, summarizing, or evidencing Grantor's assets (including the Collateral) or liabilities, Grantor's Records relating to Grantor's business operations or financial condition, and Grantor's goods or General Intangibles related to such information).
    5. " Chattel Paper " means chattel paper (as that term is defined in the Code) and includes tangible chattel paper and electronic chattel paper.
    6. " Code " means the Delaware Uniform Commercial Code, as in effect from time to time; provided , however , that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to Secured Party's Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of Delaware, the term "Code" shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.
    7. " Collateral " has the meaning specified therefor in Section 2 .
    8. " Commercial Tort Claims " means commercial tort claims (as that term is defined in the Code).
    9. " Copyrights " means any and all rights in any works of authorship, including copyrights, including, (i) copyright registrations and recordings thereof and all applications in connection therewith, (ii) all reissues, continuations, extensions or renewals thereof, (iii) the right to sue for past, present and future infringements and dilutions thereof, (iv) the goodwill of Grantor's business symbolized by the foregoing or connected therewith, and (v) all of Grantor's rights corresponding thereto throughout the world.
    10. " Deposit Account " means a deposit account (as that term is defined in the Code).
    11. " Equipment " means equipment (as that term is defined in the Code).

    1. " Event of Default " means a "Default" as defined in the Note.
    2. " Existing Lenders " means Wells Fargo Bank, N.A., Hudson Bay Fund LP (in its capacity as collateral agent), and Imperial Valley Seeds.
    3. " General Intangibles " means general intangibles (as that term is defined in the Code) and includes payment intangibles, contract rights, rights to payment, rights arising under common law, statutes, or regulations, choses or things in action, goodwill (including the goodwill associated with any Trademark or the Purchased Assets), Intellectual Property, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses, infringement claims, misappropriation claims, and any other personal property other than money and goods.
    4. " Grantor " has the meanings specified therefor in the preamble hereto.
    5. " Insolvency Proceeding " means any action or proceeding by or with respect to Grantor under any Debtor Relief Law (as defined in the Note).
    6. " Intellectual Property " means any and all Patents, Copyrights, Trademarks (including the goodwill associated with such Trademarks), trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, and domain names, specifications, documentations, reports, catalogs, and any other forms of technology or proprietary information of any kind included as part of the Collateral, including all rights therein and all applications for registration or registrations thereof.
    7. " Intellectual Property Licenses " means (i) any licenses in Intellectual Property owned or controlled by Grantor provided to any third party and (ii) any licenses in Intellectual Property owned by any third party provided to Grantor and, to the extent permitted in such licenses, the right to use the foregoing in connection with the enforcement of Secured Party's rights under the Loan Documents, including the right to prepare for sale and sell any and all Inventory and Equipment now or hereafter owned by Grantor and now or hereafter covered by such licenses.
    8. " Inventory " means inventory (as that term is defined in the Code).
    9. " Investment Property " means (i) any and all investment property (as that term is defined in the Code).
    10. " Loan Documents " has the meaning specified therefor in the Note.
    11. " Negotiable Collateral " means letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and documents (as each such term is defined in the Code).
    12. " Note " has the meaning specified therefor in the recitals hereto.

    1. " Patents " means patents and patent applications, including, (i) all continuations, divisionals, continuations-in-part, re-examinations, reissues, and renewals thereof and improvements thereon, (ii) the right to sue for past, present and future infringements and dilutions thereof, and (iii) all of Grantor's rights corresponding thereto throughout the world.
    2. " Person " means any natural person, corporation, partnership, limited liability company, trust, and any other unincorporated association or entity.
    3. " Proceeds " has the meaning specified therefor in Section 2 .
    4. " Records " means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.

    1. " Secured Obligations " means all of the present and future obligations of Grantor arising from this Agreement, the Note, or the other Loan Documents, including reasonable attorneys fees and expenses and any interest, fees, or expenses that accrue after the filing of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any Insolvency Proceeding.

    1. " Secured Party " has the meanings specified therefor in the preamble hereto.

    1. " Secured Party's Lien " means the security interests and other rights granted to Secured Party hereunder with respect to the Collateral.

    1. " Security Interest " has the meaning specified therefor in Section 2 .

    1. " Supporting Obligations " means supporting obligations (as such term is defined in the Code) and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Property.

    1. " Trademarks " means any and all trademarks, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (i) all renewals thereof, (ii) the right to sue for past, present and future infringements and dilutions thereof, (iii) the goodwill of Grantor's business symbolized by the foregoing or connected therewith, and (iv) all of Grantor's rights corresponding thereto throughout the world.

  1. Grant of Security . Grantor hereby unconditionally grants, assigns, and pledges to Secured Party to secure the Secured Obligations a continuing security interest (hereinafter referred to as the " Security Interest ") in all of Grantor's right, title and interest in and to the Arlington Plant Site, the Nampa Plant Site, the Transferred Equipment, the Transferred Germplasm, the Transferred Know-How, the Transferred Patents, the Transferred PVPs (as such terms are defined in the APSA) and the General Intangibles described therein (together, the " Collateral "), together with all of the proceeds (as that term is defined in the Code) and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, General Intangibles, Inventory, Investment Property, Negotiable Collateral, Supporting Obligations, money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, whatever is collected on, or distributed on account of any of the

    foregoing, any and all rights arising out of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, claims arising out of the loss, non-conformity, or interference with the use of, defects, or infringement of rights in, or damage to, any of the foregoing, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, insurance, or guaranty payable by reason of loss or non-conformity of, defects or infringement of rights in, or damage to, or otherwise with respect to any of the foregoing (the " Proceeds ").

  1. Security for Obligations . The Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantor but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving Grantor.
  2. Grantor Remains Liable . Anything herein to the contrary notwithstanding, (a) Grantor shall remain liable under the contracts and agreements included in the Collateral to perform all of the duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by Secured Party of any of the rights hereunder shall not release Grantor from any of its duties or obligations under such contracts and agreements included in the Collateral, and (c) Secured Party shall not have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall Secured Party be obligated to perform any of the obligations or duties of Grantor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Until an Event of Default shall occur and be continuing, except as otherwise provided in this Agreement or other Loan Documents, Grantor shall have the right to possession and enjoyment of the Collateral for the purpose of conducting the ordinary course of its business, subject to and upon the terms hereof and of the other Loan Documents.
  3. Representations and Warranties . Grantor hereby represents and warrants as follows:
    1. As of the date hereof, the exact legal name of Grantor is S&W Seed Company and its sole jurisdiction of formation is Nevada.
    2. This Agreement creates a valid security interest in the Collateral to the extent a security interest therein can be created under the Code, securing the payment of the Secured Obligations. Except to the extent a security interest in the Collateral cannot be perfected by the filing of a financing statement under the Code, all filings and other actions reasonably necessary to perfect and protect such security interest have been duly taken or will have been taken upon the filing of a financing statement listing Grantor, as a debtor, and Secured Party, as secured party, in both the jurisdiction listed in Section 5(a) above and Idaho, Wisconsin and Washington. Upon the making of such filing, Secured Party shall have a junior priority perfected security interest in the Collateral to the extent such security interest can be perfected by the filing of a financing statement, other than with respect to the Arlington Plant Site and the Nampa Plant

      Site and the Transferred Equipment, with respect to which Secured Party shall have a first priority perfected security interest. All action by Grantor necessary to protect and perfect such security interest on each item of Collateral has been or, on the date of this Agreement will be, duly taken.

    1. No consent, approval, authorization, or other order or other action by, and no notice to or filing with, any governmental authority or any other Person is required (i) for the grant of a Security Interest by Grantor in and to the Collateral pursuant to this Agreement or for the execution, delivery, or performance of this Agreement by Grantor, in each case to the extent required by the terms hereof, or (ii) for the exercise by Secured Party of the voting or other rights provided for in this Agreement with respect to the Investment Property or the remedies in respect of the Collateral pursuant to this Agreement, except as may be required in connection with such disposition of Investment Property by laws affecting the offering and sale of securities generally.

  1. Covenants . Grantor covenants and agrees with Secured Party that from and after the date of this Agreement and until the date of termination of this Agreement in accordance with Section 18 hereof:
    1. Possession of Collateral . In the event that any Collateral, including Proceeds, is evidenced by or consists of Negotiable Collateral, Investment Property, or Chattel Paper, and if and to the extent that perfection or priority of Secured Party's Security Interest is dependent on possession, Grantor, promptly upon the request of Secured Party, shall execute such other documents and instruments, in each case in customary form, as shall be reasonably requested by Secured Party or, if applicable, endorse and deliver physical possession of such Negotiable Collateral, Investment Property, or Chattel Paper to Secured Party, together with such undated powers endorsed in blank as shall be reasonably requested by Secured Party;
    2. Transfers and Other Liens . Without the prior written consent of Secured Party, Grantor shall not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the Collateral, except in the ordinary course of its business, or (ii) create or, except with respect to any lien held by the Existing Lenders, permit to exist any lien upon or with respect to any of the Collateral. The inclusion of Proceeds in the Collateral shall not be deemed to constitute Secured Party's consent to any sale or other disposition of any of the Collateral except as expressly permitted in this Agreement or the other Loan Documents.
    3. Commercial Tort Claims . If Grantor shall at any time hold or acquire a commercial tort claim, Grantor shall immediately notify Secured Party in writing of the brief details thereof and grant to Secured Party in writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to Secured Party;
    4. Maintenance of Insurance. Grantor will maintain with financially sound and reputable insurers insurance with respect to its properties and business against such casualties and contingencies as shall be in accordance with general practices of businesses engaged in similar activities in similar geographic areas. Such insurance shall be in such minimum amounts that Grantor will not be deemed a co-insurer under applicable insurance laws,

      regulations and policies and otherwise shall be in such amounts, contain such terms, be in such forms and be for such periods as may be reasonably satisfactory to Secured Party. Without limiting the foregoing, Grantor will (i) keep all of its physical property insured with casualty or physical hazard insurance on an "all risks" basis, with broad form flood and earthquake coverages and electronic data processing coverage, with a full replacement cost endorsement and an "agreed amount" clause in an amount equal to 100% of the full replacement cost of such property, (ii) maintain all such workers' compensation or similar insurance as may be required by law and (iii) maintain, in amounts and with deductibles equal to those generally maintained by businesses engaged in similar activities in similar geographic areas, general public liability insurance against claims of bodily injury, death or property damage occurring, on, in or about the properties of Grantor; business interruption insurance; and product liability insurance; and

    1. Taxes . Grantor will pay promptly when due all taxes, levies, assessments, and other governmental charges imposed on Grantor or the Collateral, or any part of the Collateral, or for its use and operation, other than such taxes, levies, assessments or other governmental charges that are being contested in good faith by Grantor.

  1. Further Assurances .
    1. Grantor agrees that from time to time, at its own expense, that it will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or that Secured Party may reasonably request, in order to perfect and protect the Security Interest granted or purported to be granted hereby or to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral.
    2. Grantor authorizes the filing by Secured Party of financing or continuation statements, or amendments thereto, and Grantor will execute and deliver to Secured Party such other instruments or notices, as may be reasonably necessary or as Secured Party may reasonably request, in order to perfect and preserve the Security Interest granted or purported to be granted hereby, including a Deed of Trust with respect to the Nampa Plant Site and a Mortgage with respect to the Arlington Plant Site.
    3. Grantor authorizes Secured Party at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance. Grantor also hereby ratifies any and all financing statements or amendments previously filed by Secured Party in any jurisdiction.
    4. Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Secured Party, subject to Grantor's rights under Section 9-509(d)(2) of the Code.

  2. Secured Party's Right to Perform Contracts, Exercise Rights, etc . Upon the occurrence and during the continuance of an Event of Default, Secured Party (or its designee) (a) may proceed to perform any and all of the obligations of Grantor contained in any contract, lease, or other agreement included in the Collateral and exercise any and all rights of Grantor

    therein contained as fully as Grantor itself could and (b) shall have the right to use Grantor's rights under any contract or agreement included in the Collateral in connection with the enforcement of Secured Party's rights hereunder, including the right to prepare for sale and sell any and all Inventory and Equipment included in the Collateral and now or hereafter owned by Grantor.

  1. Secured Party Appointed Attorney-in-Fact . Grantor hereby irrevocably appoints Secured Party its attorney-in-fact, with full authority in the place and stead of Grantor and in the name of Grantor or otherwise, at such time as an Event of Default has occurred and is continuing, to take any action and to execute any instrument which Secured Party may reasonably deem necessary to accomplish the purposes of this Agreement, including:
    1. to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection with the Collateral of Grantor;
    2. to file any claims or take any action or institute any proceedings which Secured Party may reasonably deem necessary for the collection of any of the Collateral or otherwise to enforce the rights of Secured Party with respect to any of the Collateral;
    3. to repair, alter, or supply goods, if any, reasonably necessary to fulfill in whole or in part the purchase order of any Person obligated to Grantor in respect of any Account of Grantor;
    4. to use any Intellectual Property, including but not limited to any labels, Patents, Trademarks, domain names, industrial designs, Copyrights, and advertising matter, in advertising for sale and selling Inventory and other Collateral and to collect any amounts due under Accounts, contracts or Negotiable Collateral of Grantor; and
    5. Secured Party shall have the right, but shall not be obligated, to bring suit in its own name to enforce the Intellectual Property and Intellectual Property Licenses and, if Secured Party shall commence any such suit, the Grantor shall, at the reasonable request of Secured Party, do any and all lawful acts and execute any and all proper documents reasonably required by Secured Party in aid of such enforcement.

    To the extent permitted by law, Grantor hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an interest and shall be irrevocable until this Agreement is terminated.

  2. Secured Party May Perform . If Grantor fails to perform any agreement contained herein, Secured Party may itself perform, or cause performance of, such agreement, and the reasonable expenses of Secured Party incurred in connection therewith shall be payable by Grantor.
  3. Secured Party's Duties . The powers conferred on Secured Party hereunder are solely to protect Secured Party's interest in the Collateral and shall not impose any duty upon Secured Party to exercise any such powers. Except for the safe custody of any Collateral in its actual possession and the accounting for moneys actually received by it hereunder, Secured Party

    shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its actual possession if such Collateral is accorded treatment substantially equal to that which Secured Party accords its own property.

  1. Collection of Accounts, General Intangibles and Negotiable Collateral . At any time upon the occurrence and during the continuation of an Event of Default, Secured Party or Secured Party's designee may (a) notify Account Debtors of Grantor that the General Intangibles included in the Collateral have been assigned to Secured Party or that Secured Party has a security interest therein and (b) collect the General Intangibles directly, and any collection costs and expenses shall constitute part of the Secured Obligations under the Loan Documents.
  2. Remedies . Upon the occurrence and during the continuance of an Event of Default:
    1. Secured Party may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Loan Documents, or otherwise available to it, all the rights and remedies of a secured party on default under the Code or any other applicable law. Without limiting the generality of the foregoing, Grantor expressly agrees that, in any such event, Secured Party without demand of performance or other demand, advertisement or notice of any kind (except a notice specified below of time and place of public or private sale) to or upon Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code or any other applicable law), may take immediate possession of all or any portion of the Collateral and (i) require Grantor to, and Grantor hereby agrees that it will at its own expense and upon reasonable request of Secured Party forthwith, assemble all or part of the Collateral as directed by Secured Party and make it available to Secured Party at one or more locations where Grantor regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Secured Party's offices or elsewhere, for cash, on credit, and upon such other terms as Secured Party may deem commercially reasonable. Grantor agrees that, to the extent notice of sale shall be required by law, at least 10 days notice to Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notice shall constitute a reasonable "authenticated notification of disposition" within the meaning of Section 9-611 of the Code. Secured Party shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Grantor agrees that the internet shall constitute a "place" for purposes of Section 9-610(b) of the Code.
    2. Subject to the priority lien of Hudson Bay Fund LP (in its capacity as collateral agent) in the Intellectual Property, Secured Party is hereby granted a license or other right to use, without liability for royalties or any other charge, Grantor's Intellectual Property, including but not limited to, any labels, Patents, Trademarks, trade names, domain names, industrial designs, Copyrights, and advertising matter, whether owned by Grantor or with respect

      to which Grantor has rights under license, sublicense, or other agreements, as it pertains to the Collateral, in preparing for sale, advertising for sale and selling any Collateral, and Grantor's rights under all licenses and all franchise agreements shall inure to the benefit of Secured Party.

    1. Any cash held by Secured Party as Collateral and all cash proceeds received by Secured Party in respect of any sale of, collection from, or other realization upon all or any part of the Collateral in accordance with its exercise of remedies hereunder shall be applied against the Secured Obligations in the order set forth in the Note. In the event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in full, Grantor shall remain liable for any such deficiency. Any surplus of such cash or cash proceeds held by or on behalf of Secured Party and remaining after payment in full of all the Secured Obligations shall be paid over to Grantor or to whomsoever may be lawfully entitled to receive such surplus.
    2. Grantor hereby acknowledges that the Secured Obligations arose out of a commercial transaction, and agrees that if an Event of Default shall occur and be continuing Secured Party shall have the right to an immediate writ of possession without notice of a hearing. Secured Party shall have the right to the appointment of a receiver for the properties and assets of Grantor, and Grantor hereby consents to such rights and such appointment and hereby waives any objection Grantor may have thereto or the right to have a bond or other security posted by Secured Party.

  1. Remedies Cumulative . Each right, power, and remedy of Secured Party as provided for in this Agreement or in the other Loan Documents or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Agreement or in the other Loan Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Secured Party, of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by Secured Party of any or all such other rights, powers, or remedies.
  2. Marshaling . Secured Party shall not be required to marshal any present or future collateral security (including but not limited to the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Secured Party's rights and remedies under this Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, Grantor hereby irrevocably waives the benefits of all such laws.
  3. Entire Agreement, Amendments; Etc. This Agreement constitutes (along with the other Loan Documents) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. 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. This Agreement may not be amended except by a written agreement executed by Secured Party and Grantor.

  1. Addresses for 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):
  2. If to Secured Party :

    Pioneer Hi-Bred International, Inc.
    Attention: President
    DuPont Pioneer
    7100 N.W. 62nd Avenue
    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 Grantor :

    S&W Seed Company
    Attention: Chief Financial Officer
    1974 N. Gateway Blvd., Suite 104
    Fresno, CA 93727
    Fax: (559) 255-5457

  3. Continuing Security Interest. This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the Secured Obligations have been paid in full in cash in accordance with the provisions of the Note, (b) be binding upon

    Grantor, and its successors and assigns, and (c) inure to the benefit of, and be enforceable by, Secured Party, and its successors, transferees and assigns. Without limiting the generality of the foregoing clause (c), Secured Party may, in accordance with the provisions of the Note, assign or otherwise transfer all or any portion of its rights and obligations under the Note to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to Secured Party herein or otherwise. Upon payment in full in cash of the Secured Obligations in accordance with the provisions of the Note, the Security Interest granted hereby shall terminate and all rights to the Collateral shall revert to Grantor or any other Person entitled thereto. At such time, Secured Party will authorize the filing of appropriate termination statements to terminate such Security Interests. No transfer or renewal, extension, assignment, or termination of this Agreement or of any other Loan Document, or any other instrument or document executed and delivered by Grantor to Secured Party, nor the taking of further security, nor the retaking or re-delivery of the Collateral to Grantor, by Secured Party, nor any other act of Secured Party shall release Grantor from any obligation, except a release or discharge executed in writing by Secured Party. Secured Party shall not by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by Secured Party and then only to the extent therein set forth. A waiver by Secured Party of any right or remedy on any occasion shall not be construed as a bar to the exercise of any such right or remedy which Secured Party would otherwise have had on any other occasion.

  1. Governing Law . THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE HEREOF, SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
  2. Jurisdiction . Except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement. The parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such Proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 18 (as such address may be updated from time to time in accordance with the terms of Section 18 ).
  3. WAIVER OF JURY TRIAL . 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 OTHER LOAN DOCUMENTS. SECURED PARTY AND GRANTOR ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 21 IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL.

  1. Miscellaneous .
    1. 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.
    2. 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.
    3. The headings of Articles and Sections in this Agreement 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), such reference shall be to the corresponding section (or article, clause or preamble) of this Agreement.
    4. 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.
    5. All words used in this Agreement shall be construed to be of such gender or number as the circumstances require.
    6. 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.
    7. The words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. Any reference herein to the satisfaction or repayment in full of the Secured Obligations shall mean the repayment in full in cash of all Secured Obligations other than unasserted contingent indemnification obligations. Any reference herein to any Person shall be construed to include such Person's successors and assigns. Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.

[ signature pages follow ]


IN WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement by and through their duly authorized officers, as of the day and year first above written.

GRANTOR:

 

S&W Seed Company,
a Nevada corporation

 

By:______________________________

Name:

Title:

SECURED PARTY:

Pioneer Hi-Bred International, Inc.,
an Iowa corporation

 

 

By:______________________________

Name:

Title:

[Signature Page to Security Agreement]


EXHIBIT 10.9

Document Number

State Bar of Wisconsin Form 21-2003

MORTGAGE

 

Document Name

 

 

S&W Seed Company, a Nevada corporation

("Mortgagor," whether one or more) mortgages to Pioneer Hi-Bred International Inc.

its successors or assigns ("Mortgagee," whether one or more), to secure payment of $ 15,000,000.00 evidenced by a note or notes, or other obligation ("Obligation") dated December 2014 , executed by S&W Seed Company, a Nevada corporation ("Note")

*See Addendum to Mortgage ,

to Mortgagee , and any extensions, renewals and modifications of the Obligation and refinancings of any such indebtedness on any terms whatsoever (including increases in interest) and the payment of all other sums, with interest, advanced to protect the Property and the security of this Mortgage, and all other amounts paid by Mortgagee hereunder, the following property, together with all rights and interests appurtenant thereto in law or equity, all rents, issue and profits arising therefrom, including insurance proceeds and condemnation awards, all structures, improvements and fixtures located thereon, in Columbia County, State of Wisconsin ("Property"):

Recording Area

Name and Return Address

Courtney Dreyer, Esq.

DuPont Pioneer

7250 N.W. 62nd Avenue

Johnston, IA 50131-1014

 

11002-392.01 & 11002-392-A

Parcel Identification Number (PIN)

 

This is not homestead property.

(is) (is not)

 

This is a purchase money mortgage.

(is) (is not)

Lands described in Columbia County Certified Survey Map No. 884, as recorded in Volume 4 of Surveys, on page 104, as Document No. 441386, being located in the North East 114 of the North East 1/4 of Section 22, Township 10 North, Range 9 East, Town of Arlington, Columbia County, Wisconsin.

Lot 1 of Certified Survey Map No. 3122, as recorded in Volume 20 of Certified Survey Maps, page 118, Document No. 593525, being a Survey in the North East 1/4 of the North East 1/4 of Section 22, Township 10 North, Range 9 East, Town of Arlington, Columbia County, Wisconsin.

  1. MORTGAGOR'S COVENANTS .
    1. COVENANT OF TITLE . Mortgagor warrants title to the Property, except restrictions and easements of record, if any, and further excepting:
    2. other matters of record.

    3. FIXTURES . Any property which has been affixed to the Property and is used in connection with it is intended to become a fixture. Mortgagor waives any right to remove such fixture from the Property which is subject to this Mortgage.
    4. TAXES . Mortgagor promises to pay when due all taxes and assessments levied on the Property or upon Mortgagee's interest in it and to deliver to Mortgagee on demand receipts showing such payment.

State Bar Form 21 - Paqe 1


    1. INSURANCE . Mortgagor shall keep the improvements on the Property insured against a loss or damage occasioned by fire, extended coverage perils and such other hazards as Mortgagee may require, without co-insurance, through insurers approved by Mortgagee, in the amount of the full replacement value of the improvements on the Property. Mortgagor shall pay the insurance premiums when due. The policies shall contain the standard mortgage clause in favor of Mortgagee, and evidence of all policies covering the Property shall be provided to Mortgagee. Mortgagor shall promptly give notice of loss to insurance companies and Mortgagee. Unless Mortgagor and Mortgagee otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, provided the Mortgagee deems the restoration or repair to be economically feasible.
    2. OTHER COVENANTS . Mortgagor covenants not to commit waste nor suffer waste to be committed on the Property, to keep the Property in good condition and repair, to keep the Property free from future liens superior to the lien of this Mortgage and to comply with all laws, ordinances and regulations affecting the Property. Mortgagor shall pay when due all indebtedness which may be or become secured at any time by a mortgage or other lien on the Property superior to this Mortgage and any failure to do so shall constitute a default under this Mortgage.

  1. DEFAULT AND REMEDIES . Mortgagor agrees that time is of the essence with respect to payment of principal and interest when due, and in the performance of the terms, conditions and covenants contained herein or in the Obligation secured hereby. In the event of default, Mortgagee may, at its option, declare the whole amount of the unpaid principal and accrued interest due and payable, and collect it in a suit at law or by foreclosure of this Mortgage or by the exercise of any other remedy available at law or equity. If this Mortgage is subordinate to a superior mortgage lien, a default under the superior mortgage lien constitutes a default under this Mortgage.
  2. NOTICE . Unless otherwise provided in the Obligation secured by this Mortgage, prior to any acceleration (other than under paragraph 9, below) Mortgagee shall mail notice to Mortgagor specifying: (a) the default; (b) the action required to cure the default; (c) a date, not less than 15 days from the date the notice is mailed to Mortgagor by which date the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration.
  3. EXPENSES AND ATTORNEY FEES . In case of default, whether abated or not, all costs and expenses, including, but not limited to, reasonable attorney fees, to the extent not prohibited by law shall be added to the principal, become due as incurred, and in the event of foreclosure be included in the judgment.
  4. FORECLOSURE WITHOUT DEFICIENCY . Mortgagor agrees to the provisions of Sections 846.101 and 846.103, Wis. Stats., as may apply to the Property and as may be amended, permitting Mortgagee in the event of foreclosure to waive the right to judgment for deficiency and hold the foreclosure sale within the time provided in such applicable Section.
  5. RECEIVER . Upon default or during the pendency of any action to foreclose this Mortgage, Mortgagor consents to the appointment of a receiver of the Property, including

State Bar Form 21 - Paqe 2


    homestead interest, to collect the rents, issues and profits of the Property during the pendency of such an action, and such rents, issues and profits when so collected shall be held and applied as the court shall direct.

  1. WAIVER . Mortgagee may waive any default without waiving any other subsequent or prior default by Mortgagor.
  2. MORTGAGEE MAY CURE DEFAULTS . In the event of any default by Mortagor of any kind under this Mortgage or any Obligation secured by this Mortgage, Mortgagee may cure the default and all sums paid by Mortgagee for such purpose shall immediately be repaid by Mortgagor with interest at the rate then in effect under the Obligation secured by this Mortgagee and shall constitute a lien upon the Property.
  3. CONSENT REQUIRED FOR TRANSFER . Mortgagor shall not transfer, sell or convey any legal or equitable interest in the Property (by deed, land contract, option, long-term lease or in any other way) without the prior written consent of Mortgagee, unless either the indebtedness secured by this Mortgage is first paid in full or the interest conveyed is a mortgage or other security interest in the Property, subordinate to the lien of this Mortgage. The entire indebtedness under the Obligation secured by this Mortgage shall become due and payable in full at the option of Mortgagee without notice, which notice is hereby waived, upon any transfer, sale or conveyance made in violation of this paragraph. A violation of the provisions of this paragraph will be considered a default under the terms of this Mortgage and the Obligation it secures.
  4. ASSIGNMENT OF RENTS . Mortgagor hereby transfers and assigns absolutely to Mortgagee, as additional security, all rents, issues and profits which become or remain due (under any form of agreement for use or occupancy of the Property or any portion thereof), or which were previously collected and remain subject to Mortgagor's control following any default under this Mortgage or the Obligation secured hereby and delivery of notice of exercise of this assignment by Mortgagee to the tenant or other user(s) of the Property in accordance with the provisions of Section 708.11, Wis. Stats., as may be amended. This assignment shall be enforceable with or without appointment of a receiver and regardless of Mortgagee's lack of possession of the Property.
  5. ENVIRONMENTAL PROVISION . Mortgagor represents, warrants and covenants to Mortgagee that (a) during the period of Mortgagor's ownership or use of the Property no substance has been, is or will be present, used, stored, deposited, treated, recycled or disposed of on, under, in or about the Property in a form, quantity or manner which if known to be present on, under, in or about the Property would require clean-up, removal or other remedial action ("Hazardous Substance") under any federal, state or local laws, regulations, ordinances, codes or rules ("Environmental Laws"); (b) Mortgagor has no knowledge, after due inquiry, of any prior use or existence of any Hazardous Substance on the Property by any prior owner of or person using the Property; (c) without limiting the generality of the foregoing, Mortgagor has no knowledge, after due inquiry, that the Property contains asbestos, polychlorinated biphenyl components ("PCBs") or underground storage tanks; (d) there are no conditions existing currently or likely to exist during the term of this Mortgage which would subject Mortgagor to any damages, penalties, injunctive relief or clean-up costs in any governmental or regulatory

State Bar Form 21 - Paqe 3


    action or third-party claims relating to any Hazardous Substance; (e) Mortgagor is not subject to any court or administrative proceeding, judgment, decree, order or citation relating to any Hazardous Substance; and (f) Mortgagor in the past has been, at the present is and in the future will remain in compliance with all Environmental Laws. Mortgagor shall indemnify and hold harmless Mortgagee from all loss, cost (including reasonable attorney fees and legal expenses), liability and damage whatsoever directly or indirectly resulting from, arising out of or based upon (i) the presence, use, storage, deposit, treatment, recycling or disposal, at any time, of any Hazardous Substance on, under, in or about the Property, or the transportation of any Hazardous Substance to or from the Property, (ii) the violation or alleged violation of any Environmental Law, permit, judgment or license relating to the presence, use, storage, deposit, treatment, recycling or disposal of any Hazardous Substance on, under, in or about the Property, or the transportation of any Hazardous Substance to or from the Property, or (iii) the imposition of any governmental lien for the recovery of environmental clean-up costs expended under any Environmental Law. Mortgagor shall immediately notify Mortgagee in writing of any governmental or regulatory action or third-party claim instituted or threatened in connection with any Hazardous Substance on, in, under or about the Property.

  1. SECURITY INTEREST ON FIXTURES . To further secure the payment and performance of the Obligation, Mortgagor hereby grants to Mortgagee a security interest in:
  2. CHOOSE ONE OF THE FOLLOWING OPTIONS; IF NEITHER IS CHOSEN, OPTION A SHALL APPLY:

    A. All fixtures and personal property located on or related to the operations of the Property whether now owned or hereafter acquired.

    B. All property listed on the attached schedule.

    This Mortgage shall constitute a security agreement within the meaning of the Uniform Commercial Code with respect to those parts of the Property indicated above. This Mortgage constitutes a fixture filing and financing statement as those terms are used in the Uniform Commercial Code. This Mortgage is to be filed and recorded in the real estate records of the county in which the Property is located, and the following information is included: (1) Mortgagor shall be deemed the "debtor"; (2) Mortgagee shall be deemed to be the "secured party" and shall have all of the rights of a secured party under the Uniform Commercial Code; (3) this Mortgage covers goods which are or are to become fixtures; (4) the name of the record owner of the land is the debtor; (5) the legal name and address of the debtor are S&W Seed Company, a Nevada corporation 25552 South Butte Avenue, Five Points, CA 93624 ; (6) the state of organization and the organizational identification number of the debtor (if applicable) are Nevada (#NV20111672033) ; and (7) the address of the secured party is 7100 N.W. 62nd Avenue, Johnston, IA 50131-1014 .

  3. SINGULAR; PLURAL . As used herein, the singular shall include the plural and any gender shall include all genders.
  4. JOINT AND SEVERAL/LIMITATION ON PERSONAL LIABILITY . The covenants of this Mortgage set forth herein shall be deemed joint and several among Mortgagors,

State Bar Form 21 - Paqe 4


    if more than one. Unless a Mortgagor is obligated on the Obligation secured by this Mortgage, Mortgagor shall not be liable for any breach of covenants contained in this Mortgage.

  1. INVALIDITY . In the event any provision or portion of this instrument is held to be invalid or unenforceable, this shall not impair or preclude the enforcement of the remainder of the instrument.
  2. MARITAL PROPERTY STATEMENT . Any individual Mortgagor who is married represents that the obligation evidenced by this instrument was incurred in the interest of Mortgagor's marriage or family.

State Bar Form 21 - Paqe 5


Addendum to Mortgage

Mortgagor: S&W Seed Company, a Nevada corporation

Mortgagee: Pioneer Hi-Bred International, Inc.

Mortgage dated: December ___, 2014

Property: W8131 State Trunk Highway 60, Town of Arlington, Columbia County, Wisconsin.

The following terms and provisions are made a part of and are hereby incorporated into the attached Mortgage:

  1. Continuation . Continuation from * on page 1 of the Mortgage after "("Note")": ".in favor of Mortgagee, this Mortgage and other documents and instruments executed as further evidence of, as additional security for, or executed in connection with, the indebtedness evidenced by the Note and the documents otherwise defined in the Note as the "Transaction Documents" (collectively, the "Obligation" or "Obligations"), including, but not limited to, that certain Deed of Trust (as defined in the Note) entered into as of even date herewith for that certain real property commonly known as 9224 Lake Shore Drive, Nampa, Idaho."
  2. Insurance . Section 1d of the Mortgage is amended to include and otherwise require that the policies of insurance shall further provide that no cancellation or termination thereof or any material modification thereof shall be effective except upon thirty (30) days written notice to Mortgagee.
  3. Environmental Provision . The representations, warranties, covenants, agreements, undertakings, and indemnification obligations of Mortgagor contained in Section 3 of this Mortgage are expressly subject to, limited and controlled by, the representations, warranties, covenants, agreements and indemnification obligations of Mortgagee contained in the Asset Purchase and Sale Agreement entered into between the parties in connection with the sale and transfer of the Property ("APSA"), including but not limited to Sections 2.1(d)(ii), 3.13, 5.17, 9.1, 9.3, 9.4, 9.5, 9.6, 9.7 and 9.9 thereof. In the event of any conflict between the provisions of Section 3 of the Mortgage and the above-referenced provisions of the APSA, the APSA shall govern.
  4. Use of Property . The Property shall be used only as a seed production facility and related agricultural purposes and for no other use without the prior written consent of Mortgagee, which consent may be withheld in Mortgagee's discretion.
  5. Governing Law . This Mortgage shall be governed by the laws of the State of Wisconsin. In the event that any provision or clause of any of the documents or instruments evidencing the Obligations conflicts with applicable laws, such conflicts shall not affect other provisions of such documents or instruments evidencing the Obligations which can be given effect without the conflicting provision, and to this end the provisions of the documents or instruments evidencing the Obligations are declared to be severable. The terms and provisions of this Mortgage cannot be waived, changed, discharged or terminated orally, but only by an

    instrument in writing, signed by the party against whom enforcement of any waiver, change, discharge or termination is sought.

  1. Cross Collateralization . Any collateral under the documents or instruments evidencing the Obligations, including without limitation the Property, shall be deemed to be collateral for any and all obligations evidenced by any and all documents or instruments evidencing the Obligations, including without limitation this Mortgage, now existing or hereafter arising, and Mortgagee shall have the right to exercise any and all remedies available to it in order to realize upon some or all of such collateral to satisfy some or all of the Obligations in the event of any default by Mortgagor.
  2. Notice . Section 3 of the Mortgage is amended to provide that all notices required or elected to be given under the Mortgage shall be made in accordance with the notice requirements set forth in the Note.
  3. Conflict . In the event of any conflict between the terms set forth in this Mortgage and the terms contained in the documents or instruments evidencing the Obligations, the provisions of this Mortgage shall control.

2


EXHIBIT 10.10

CONFIDENTIAL

When recorded, please return to:

Pioneer Hi-Bred International, Inc.
c/o Courtney Chabot Dreyer
7250 N.W. 62 nd Avenue
P.O. Box 1014
Johnston, Iowa 50131-1014

___________________________________________________________________________________________________________

 

DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING

THIS DEED OF TRUST is made effective the 31st day of December, 2014 between:

BORROWER:

S&W SEED COMPANY
25552 South Butte Avenue
Five Points, California 93624

 

TRUSTEE:

TitleOne Corporation
1101 W. River Street, Suite 201
Boise, Idaho 83702

 

BENEFICIARY:

Pioneer Hi-Bred International, Inc.
7100 N.W. 62 nd Avenue
P.O. Box 1014
Johnston, Iowa 50131-1014

W I T N E S S E T H:

FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, Borrower hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the real property commonly known as 9224 Lake Shore Drive, Nampa, Idaho and more particularly described as follows, which contains not more than eighty (80) acres or which is located within the legal boundaries of an incorporated city (the "Property"):

See Exhibit A attached hereto and made a part hereof by this reference.

TOGETHER WITH all rents, issues, profits, royalties, income and other benefits derived from the Property (collectively, the "Rents"), subject to the right, power and authority hereinafter given to Borrower to collect and apply such Rents;

TOGETHER WITH all leasehold estate, right, title and interest of Borrower in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title, and interest of Borrower thereunder, including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature;

TOGETHER WITH all interests, estate or other claims, both in law and in equity, which Borrower now has or may hereafter acquire in the Property;

TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and thereto;


TOGETHER WITH all right, title and interest of Borrower, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property;

TOGETHER WITH any and all buildings and improvements now or hereafter erected on the Property, including but not limited to the fixtures, attachments, appliances, equipment, machinery and other articles attached to said buildings and improvements (the "Improvements");

TOGETHER WITH the rights hereinafter granted Beneficiary under this Deed of Trust with respect to the proceeds of insurance and awards made for the taking of eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Trust Estate, including without limitation any awards resulting from a change of grade of streets and awards for severance damages.

The entire estate, property and interest hereby conveyed to Trustee may be referred to herein as the "Trust Estate."

FOR THE PURPOSE OF SECURING:

  1. Payment of indebtedness of up to Fifteen Million Dollars and No/100ths ($15,000,000.00), as evidenced by that certain Promissory Note of even date herewith executed by Borrower and due and payable in full by December 31, 2017, which has been delivered to and is payable to the order of Beneficiary, and which by this reference is hereby made a part hereof, and any and all modifications, extensions and renewals thereof.
  2. The payment of interest, default interest, late charges and other sums, as provided in the Note, this Deed of Trust, that certain Security Agreement between the parties of even date herewith, that certain Mortgage between the parties of even date herewith for that certain real property commonly known as W8131 State Trunk Highway 60, Arlington, Wisconsin (the "Wisconsin Property"), or the other documents and instruments executed as further evidence of, as additional security for, or executed in connection with, the indebtedness evidenced by the Note (collectively, the "Loan Documents").
  3. The payment of all other monies agreed or provided to be paid by Borrower in the Note, this Deed of Trust or the other Loan Documents.
  4. The payment of all sums advanced pursuant to this Deed of Trust to protect and preserve the Property and the lien and the security interest created hereby.
  5. The payment of all sums advanced and costs and expenses incurred by Beneficiary in connection with the Secured Obligations (as defined below) or any part thereof, any renewal, extension, modification, consolidation, change, substitution, replacement, restatement or increase of the Secured Obligations or any part thereof, or the acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Beneficiary.
  6. The payment of all other sums that may hereafter be loaned or advanced by Beneficiary to Borrower.
  7. The performance of all other obligations of Borrower herein.
  8. The performance of each obligation of Borrower in the Loan Documents in addition to the payment of the Note.
  9. The performance of each obligation in the Loan Documents of any person guaranteeing the payment of the Note or any portion thereof or performance by Borrower of any terms of this Deed of Trust, if any.

D EED OF T RUST

P AGE 2 OF 17


  1. The performance of each obligation of Borrower and any guarantor in any renewal, extension, modification, consolidation, change, substitution, replacement for, restatement or increase of all or any part of the Note, this Deed of Trust or the other Loan Documents.
  2. The indebtedness, obligation and liabilities of Beneficiary described in Paragraphs A through J hereof are referred to herein as "Secured Obligations."

ARTICLE I
COVENANTS AND AGREEMENTS OF BORROWER

Borrower hereby covenants and agrees:

Section 1.01   Warranties of Title. Borrower has good, absolute and fee simple title to the Trust Estate, and Borrower is lawfully seized and possessed of the Trust Estate and every part thereof and has the right and authority to convey the Trust Estate as security for the obligations of Borrower secured hereby. The Property is free and clear of all easements, restrictions and covenants made, done or suffered by Borrower, that Borrower will own and have good and absolute title to all Improvements hereafter acquired, free and clear of all purchase money or other security interests or rights of any lessors thereto with the exception of the Subordinate Trust Deed that will be recorded in favor of Hudson Bay Capital Management LP. Borrower will forever warrant and defend the title to the Trust Estate unto the Beneficiary against all claims and demands of all persons whomsoever.

Section 1.02   Payment of Secured Obligations. To pay when due the principal of, and the interest on, the indebtedness evidenced by the Note, and the principal of, and interest on, all other Secured Obligations.

Section 1.03   Use of Property . The Property shall be used only as a seed production facility and related agricultural purposes and for no other use without the prior written consent of Beneficiary, which consent may be withheld in Beneficiary's discretion.

Section 1.04   Performance of Other Obligations. Borrower shall perform, comply with, and abide by each and every one of the covenants, agreements and conditions contained and set forth in the Note, this Deed of Trust, and the other Loan Documents and shall comply with all laws, ordinances, rules, regulations and orders of any governmental authorities having jurisdiction over the Property that now or hereafter affect the Property or requires any alterations or improvements to be made thereon, and shall perform all of its obligations under any covenant, condition, restriction or agreement of record affecting the Property and shall insure that at all times the Property constitutes one or more legal lots capable of being conveyed without violation of any subdivision or platting laws, ordinances, rules or regulations, or other laws relating to the division or separation of real property.

Section 1.05   Maintenance, Repair, Alterations. To complete promptly and in good and workmanlike manner any Improvement which may be constructed on the Property and promptly restore in like manner any Improvement which may be damaged or destroyed thereon, and to pay when due all claims for labor performed and materials furnished therefor, to comply with all laws, ordinances, regulations, covenants, conditions and restrictions now or hereafter affecting the Trust Estate or any part thereof or requiring any alterations or improvements; not to commit or permit any waste or deterioration of the Trust Estate, and to keep the Trust Estate in good condition and repair, not to remove or substantially alter any such Improvements, once constructed or installed (except such alterations as may be required by laws, ordinances or regulations) or any of the Improvements without the prior written consent of Beneficiary; to keep and maintain abutting grounds, sidewalks, roads, bridges, walkways, parking and landscape areas in good and neat order and repair; not to commit, suffer or permit any act to be done in or upon the Trust Estate in violation of any law, ordinance or regulation.

D EED OF T RUST

P AGE 3 OF 17


Section 1.06   Compliance with Laws. Borrower shall observe, abide by, and comply with all statutes, ordinances, laws, orders, requirements or decrees relating to the Property enacted, promulgated or issued by any federal, state, county or local governmental authority or any agency or subdivision thereof having jurisdiction over Borrower or the Property. Borrower shall observe and comply with all conditions and requirements necessary to preserve and extend any and all rights, licenses, permits (including, but not limited to, zoning, variances, special exceptions and nonconforming uses), privileges, franchises and concessions that are applicable to the Property or that have been granted to or contracted for by Borrower in connection with any existing, presently contemplated or future use of the Property.

Section 1.07   Hazardous Waste. Borrower at all times shall keep the Property and ground water of the Property free of Hazardous Materials (as defined below). Borrower shall not and shall not knowingly permit its tenants or any third party requiring the consent of Borrower to enter the Property, to use, generate, manufacture, treat, store, release, threaten release, or dispose of Hazardous Materials in, on, or about the Property or the ground water of the Property in violation of any federal, regional, state, or local law, decision, statute, rule, ordinance or regulation currently in existence or hereinafter enacted or rendered (collectively the "Hazardous Waste Laws"). Borrower shall give Beneficiary prompt written notice of any claim by any person, entity, or governmental agency that a significant release or disposal of Hazardous Materials has occurred in, on, or under the Property in excess of legal limits. Borrower, through its professional engineers and at its cost, shall promptly and thoroughly investigate suspected Hazardous Materials contamination of the Property. Borrower shall forthwith remove, repair, clean up, and/or detoxify any Hazardous Materials found on the Property or in the ground water of the Property if such actions are required by Hazardous Waste Laws, and whether or not Borrower was responsible for the existence of the Hazardous Materials in, on or about the Property or the ground water of the Property. Hazardous Materials shall include but not be limited to substances defined as "hazardous substances," "hazardous materials," or "toxic substances" in The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, by the Superfund Amendments and Reauthorization Act of 1986, The Hazardous Materials Transportation Act of 1994, The Resource Conservation and Recovery Act of 1976, as amended by The Used Oils Recycling Act of 1980, The Solid Waste Disposal Act amendment of 1984, The Toxic Substances Control Act, The Clean Air Act, The Clean Water Act, Idaho Environmental Protection and Health Act (Idaho Code §§  39-101 to 39-130), Idaho Radiation and Nuclear Material Act (Idaho Code §§  39-3001 to 39-3030), Idaho Water Quality Act (Idaho Code §§  39-3601 to 39-3639), Idaho Hazardous Waste Management Act (Idaho Code §§  39-4401 to 39-4432), Idaho Hazardous Substance Emergency Response Act (Idaho Code §§  39-7101 to 39-7115), Idaho Petroleum Clean Water Trust Fund Act (Idaho Code §§  41-4901 to 41-4948), Idaho Land Reclamation Act (Idaho Code §§  39-7201 to 39-7210), Idaho Solid Waste Facilities Act (Idaho Code §§  39-7401 to 39-7420), Idaho Sale and Disposal of Batteries Act (Idaho Code §§  39-7001 to 39-7004), Idaho PCB Waste Disposal Act (Idaho Code §§  39-6201 to 39-6216) or in any other Hazardous Waste Laws. Hazardous materials shall not include small quantities of paints, solvents, lubricants or cleaning materials used in the maintenance or operation of the Property. In addition, Borrower shall not put any underground storage tanks on the Real Property. Liability under this Section 1.07 and similar provisions in this Deed of Trust and the other Loan Documents concerning Hazardous Materials shall survive repayment of the Note and satisfaction of this Deed of Trust. The burden of proof under this section with regard to establishing the date upon which any Hazardous Material was placed or appeared in, on, or under the Property shall be upon Borrower.

The representations, warranties, covenants, agreements, undertakings, and indemnification obligations of Borrower contained in this Section 1.07 are expressly subject to, limited and controlled by, the representations, warranties, covenants, agreements and indemnification obligations of Beneficiary contained in the Asset Purchase and Sale Agreement entered into between the parties in connection with the sale and transfer of the Property ("APSA"), including but not limited to Sections 2.1(d)(ii), 3.13, 5.17, 9.1, 9.3, 9.4, 9.5, 9.6, 9.7 and 9.9 thereof. In the event of any conflict between the provisions of this Section 1.07 of the Deed of Trust and the above-referenced provisions of the APSA, the APSA shall govern.

Section 1.08   Maintenance of Permits. Borrower shall obtain, keep, and constantly maintain in full force and effect during the entire term of this Deed of Trust all certificates, licenses and permits necessary

D EED OF T RUST

P AGE 4 OF 17


to keep the Property operating as a seed production facility. Except as specifically provided for in this Deed of Trust, Borrower shall not assign, transfer or in any manner change such certificates, licenses or permits without first receiving the written consent of Beneficiary.

Section 1.09   Insurance . Borrower shall keep the improvements on the Property insured against a loss or damage occasioned by fire, extended coverage perils and such other hazards as Beneficiary may require, without co-insurance, through insurers approved by Beneficiary, in the amount of the full replacement value of the improvements on the Property. Borrower shall pay the insurance premiums when due. The policies shall contain the standard mortgage clause in favor of Beneficiary, and evidence of all policies covering the Property shall be provided to Beneficiary. Borrower shall promptly give notice of loss to insurance companies and Beneficiary. Unless Borrower and Beneficiary otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, provided the Beneficiary deems the restoration or repair to be economically feasible.

Section 1.10   Condemnation. Should the Property or any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any other manner, Beneficiary shall be entitled to all compensation, awards and other payments or relief therefor (collectively, "Claims") and shall be entitled at its option to commence, appear in and prosecute in its own name any action or proceedings, or to make a compromise or settlement, in connection with such taking or damage. All proceeds of the Claims assigned to Beneficiary under this Section shall be paid to Beneficiary. In each instance, Beneficiary shall apply those proceeds first toward reimbursement of all of Beneficiary's costs and expenses of recovering the proceeds, including attorneys' fees. Borrower further authorizes Beneficiary, at Beneficiary's option and in Beneficiary's sole discretion, and regardless of whether there is any impairment of the Property, (i) to apply the balance of such proceeds, or any portion of them, to pay or prepay some or all of the Secured Obligations in such order or proportion as Beneficiary may determine, or (ii) to hold the balance of such proceeds, or any portion of them, in an interest-bearing account to be used for the cost of reconstruction, repair or alteration of the Property, or (iii) to release the balance of such proceeds, or any portion of them, to Borrower. If any proceeds are released to Borrower, neither Beneficiary nor Trustee shall be obligated to see to, approve or supervise the proper application of such proceeds. If the proceeds are held by Beneficiary to be used to reimburse Borrower for the costs of restoration and repair of the Property, the Property shall be restored to the equivalent of its original condition, or such other condition as Beneficiary may approve in writing. Beneficiary may, at Beneficiary's option, condition disbursement of the proceeds on Beneficiary's approval of such plans and specifications prepared by an architect satisfactory to Beneficiary, contractor's cost estimates, architect's certificates, waivers of liens, sworn statements of mechanics and materialmen, and such other evidence of costs, percentage of completion of construction, application of payments, and satisfaction of liens as Beneficiary may reasonably require.

Section 1.11   Indemnification; Subrogation; Waiver of Offset .

  1. Subject to the indemnification obligations of the Beneficiary contained in the APSA, if Beneficiary is made a party defendant to any litigation concerning this Deed of Trust or the Trust Estate or any part thereof or interest therein, or the occupancy thereof by Borrower, then Borrower shall indemnify, defend and hold Beneficiary harmless from all liability by reason of said litigation, including reasonable attorney fees and expenses incurred by Beneficiary in any such litigation, whether or not any such litigation is prosecuted to judgment. If Beneficiary commences an action against Borrower to enforce any of the terms hereof or because of the breach by Borrower of any of the terms hereof, or for the recovery of any Secured Obligations, Borrower shall pay to Beneficiary reasonable attorney fees and expenses, and the right to such attorney fees and expenses shall be deemed to have accrued on the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. If Borrower breaches any term of this Deed of Trust, Beneficiary may employ an attorney or attorneys to protect its rights hereunder, and in the event of such employment following any breach by Borrower, Borrower shall pay Beneficiary reasonable attorney fees and expenses incurred by Beneficiary, whether or not an action is actually commenced against Borrower by reason of breach.

D EED OF T RUST

P AGE 5 OF 17


  1. Borrower waives any and all right to claim or recovery against Beneficiary, its officers, employees, agents and representatives, for loss of or damage to Borrower, the Trust Estate, Borrower's property or the property of others under Borrower's control from any cause insured against or required to be insured against by the provisions of this Deed of Trust.
  2. All sums due and payable by Borrower hereunder shall be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Borrower hereunder shall in no way be released, discharged or otherwise affected by reason of: (i) any damage to or destruction of or any condemnation or similar taking of the Trust Estate or any part thereof; (ii) any restriction or prevention of or interference with any use of the Trust Estate or any part thereof; (iii) any title defect or encumbrance or any eviction from the Property or the Improvements or any part thereof by title paramount or otherwise; or (iv) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Beneficiary, or any action taken with respect to this Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any such proceeding; whether or not Borrower shall have notice or knowledge of any of the foregoing.

Section 1.12   Taxes and Imposition .

  1. Borrower agrees to pay when due and prior to delinquency all real property taxes and assessments, general and special, and all other taxes and assessments of any kind or nature whatsoever which are assessed or imposed upon the Trust Estate, or become due and payable, and which create, may create or appear to create a lien upon the Trust Estate, or any part thereof (all of which taxes, assessments and other governmental charges of like nature are hereinafter referred to as "Impositions"); provided, however, that if, by law, any such Imposition is payable, or may at the option of the taxpayer be paid, in installments, Borrower must pay the same together with any accrued interest on the unpaid balance of such Imposition in installments as the same become due and before any fine, penalty, interest or cost may be added thereto for the nonpayment of any such installment and interest.
  2. If at any time after the date hereof there shall be assessed or imposed (i) a tax or assessment on the Trust Estate in lieu of or in addition to the Impositions payable by Borrower pursuant to subparagraph (a) hereof, or (ii) a license fee, tax or assessment imposed on Beneficiary and measured by or based in whole or in part upon the amount of the outstanding Secured Obligations, then all such taxes, assessments or fees shall be deemed to be included within the term "Impositions" as defined in subparagraph (a) hereof, and Borrower shall pay and discharge the same as herein provided with respect to the payment of Impositions, or at the option of Beneficiary, all Secured Obligations, together with all accrued interest thereon, shall immediately become due and payable. Anything to the contrary herein notwithstanding, Borrower shall have no obligation to pay any franchise, estate, inheritance, income, excess profits or similar tax levied on Beneficiary or on the Secured Obligations.
  3. Borrower shall have the right before any delinquency occurs to contest or object to the amount or validity of any such Imposition by appropriate legal proceedings, but this shall not be deemed or construed in any way as relieving, modifying or extending Borrower's covenant to pay any such Imposition at the time and in the manner provided in this section, unless Borrower has given prior written notice to Beneficiary of Borrower's intent to so contest or object to any Imposition, and unless at Beneficiary's sole satisfaction that the legal proceedings shall conclusively operate to prevent the sale of the Trust Estate, or any part thereof, to satisfy such Imposition prior to final determination of such proceedings; or (ii) Borrower shall furnish a good and sufficient bond or surety as requested by and satisfactory to Beneficiary; or (iii) Borrower shall have provided a good and sufficient undertaking as may be required or permitted by law to accomplish a stay of such proceedings.

Section 1.13   Utilities. To pay when due all utility charges which are incurred by Borrower for the benefit of the Trust Estate or which may become a charge or lien against the Trust Estate for gas, electricity,

D EED OF T RUST

P AGE 6 OF 17


water or sewer services furnished to the Trust Estate and all other assessments or charges of a similar nature, whether public or private, affecting the Trust Estate or any portion thereof, whether or not such taxes, assessments or charges are liens thereon.

Section 1.14   Actions Affecting Trust Estate. To appear in and contest any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney fees, in any such action or proceeding in which Beneficiary or Trustee may appear.

Section 1.15   Actions by Trustee and/or Beneficiary to Preserve Trust Estate. That should Borrower fail to make any payment or to do any act as and in the manner provided in any of the Loan Documents, Beneficiary and/or Trustee, each in its own discretion (and in the exercise of good faith), without obligation so to do and without notice to or demand upon Borrower and without releasing Borrower from any obligation, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. In connection therewith (without limiting their general powers), Beneficiary and/or Trustee shall have and are hereby given the right, but not the obligation, (i) to enter upon and take possession of the Trust Estate; (ii) to make necessary additions, alterations, repairs and improvements to the Trust Estate which they or either of them may consider necessary or proper to keep the Trust Estate in good condition and repair; (iii) to appear and participate in any action or proceeding affecting or which may affect the security hereof or the rights or powers of Beneficiary or Trustee; (iv) to pay, purchase, contest or compromise any encumbrance, claim, charge, lien or debt which in the judgment of either may affect or appears to affect the security of this Deed of Trust or be prior or superior hereto; and (v) in exercising such powers, to pay necessary expenses, including employment of counsel or other necessary or desirable consultants. Borrower shall, immediately upon demand therefor by Beneficiary, pay all costs and expenses incurred by Beneficiary in connection with the exercise by Beneficiary of the foregoing rights, including without limitation costs of evidence of title, court costs, appraisals, surveys and attorney fees.

Section 1.16   Survival of Warranties. To fully and faithfully satisfy and perform during the term of the Note and any extensions thereof the obligations of Borrower contained in the Loan Documents.

Section 1.17   Appointment of Successor Trustee. That Beneficiary may, from time to time, by a written instrument, mailed to Borrower and recorded in the county in which the Trust Estate is located and by otherwise complying with the provisions of the applicable law of the State of Idaho (including the mailing to Borrower by registered or certified mail of a copy of such instrument) substitute a successor or successors to the Trustee named herein or acting hereunder.

Section 1.18   Successors and Assigns. That this Deed of Trust applies to, inures to the benefit of and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term "Beneficiary" shall mean the owner and holder of the Loan Documents, including without limitation the holder of the Note, or of any undivided interest therein, and including all participants in said loan to Borrower holding certificates of participation in said Note, whether or not named as Beneficiary herein.

Section 1.19   Inspections. That Beneficiary, or its agents, representatives or workmen, are authorized to enter at any reasonable time upon or in any part of the Trust Estate for the purpose of inspecting the same and for the purpose of performing any of the acts it is authorized to perform under the terms of any of the Loan Documents.

Section 1.20   Liens. Borrower agrees to pay and promptly discharge, at Borrower's cost and expense, all liens, encumbrances and charges upon the Trust Estate, or any part thereof or interest therein. Borrower shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided Borrower shall first deposit with Beneficiary a bond or other security satisfactory to Beneficiary in such amounts as Beneficiary shall reasonably require, but not more than one and one-half (i.e. 150%) of the amount of the claim, provided further, that Borrower shall thereafter diligently proceed to cause such lien,

D EED OF T RUST

P AGE 7 OF 17


encumbrance or charge to be removed and discharged. If Borrower shall fail to discharge, or post appropriate bond to protect against, any such lien, encumbrance or charge within thirty (30) days of written demand by Beneficiary, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due, or by procuring the discharge of such lien by depositing in court a bond or the amount claimed or otherwise giving security for such claim, or in such manner as is or may be prescribed by law.

Section 1.21   Trustee's Powers. At any time, or from time to time, without liability therefor and upon written notice to Borrower, upon written request of Beneficiary and presentation of this Deed of Trust and the Note secured hereby for endorsement, and without affecting the personal liability of any person for payment of the Secured Obligations or the effect of this Deed of Trust upon the remainder of said Trust Estate, Trustee may (i) reconvey any part of said Trust Estate, (ii) consent in writing to the making of any map or plat thereof, (iii) join in granting any easement or creating any restriction thereof, (iv) or join in any extension agreement or any agreement subordinating the lien or charge hereof.

Section 1.22   Beneficiary's Powers. Without affecting the liability of any other person liable for the payment of the Secured Obligations, and without affecting the lien or charge of this Deed of Trust upon any portion of the Property not then or theretofore released as security for the Secured Obligations, Beneficiary may from time to time (i) release any other person so liable, (ii) extend the maturity or alter any of the terms of any of the Secured Obligations, (iii) grant other indulgences, (iv) release or reconvey, or cause to be released or reconveyed at any time at Beneficiary's option any parcel, portion or all of the Trust Estate, (v) take or release any other or additional security for the Secured Obligations, or (vi) make compositions or other arrangements with debtors in relation thereto.

Section 1.23   Further Assurances. Borrower will, from time to time, at Beneficiary's reasonable request, execute supplementary security agreements, trust deeds or equivalent security or lien instruments and other instruments of further assurance with respect to the Trust Estate or any part thereof, provided that no additional liability shall be incurred by Borrower in such event which shall be inconsistent with the provisions of the Loan Documents.

ARTICLE II
ASSIGNMENT OF RENTS, ISSUES AND PROFITS

Section 2.01   Assignment of Rents. Borrower hereby assigns and transfers to Beneficiary all the current and future Rents, issues and profits of the Trust Estate, and hereby gives to and confers upon Beneficiary the right, power and authority to collect such Rents, issues and profits in the event of a default by the Borrower in any of the terms and conditions hereof or of any of the Loan Documents. Borrower irrevocably appoints Beneficiary its true and lawful attorney-in-fact, at the option of Beneficiary at any time and from time to time, in the exercise of good faith, to demand, receive, and enforce payment, to give receipts, releases and satisfactions, and to sue, in the name of Borrower or Beneficiary, for all such Rents, issues and profits and apply the same to the Secured Obligations; provided, however, that Borrower shall have the right to collect such Rents, issues and profits (but not more than two months in advance) prior to or at any time there is not an event of default under any of the Loan Documents. The assignment of the Rents, issues and profits of the Trust Estate in this Article II is intended to be an absolute assignment from Borrower to Beneficiary and not merely the passing of a security interest. The Rents, issues and profits are hereby assigned absolutely by Borrower to Beneficiary contingent only upon the occurrence of an event of default under any of the Loan Documents. Borrower hereby authorizes Trustee and/or Beneficiary to file and/or record such financing statements, security agreements or other security documents as Trustee and/or Beneficiary may deem necessary or appropriate to perfect its security interest in the Rents, issues and profits of the Trust Estate.

Section 2.02   Collection Upon Default. Upon any event of default under any of the Loan Documents, Beneficiary may, upon written notice to Borrower and upon the expiration of any period provided for the cure of any default, and at any time thereafter, either in person, by agent or by a receiver appointed by a

D EED OF T RUST

P AGE 8 OF 17


court, and without regard to the adequacy of any security for the Secured Obligations, enter upon and take possession of the Trust Estate, or any part thereof, in its own name sue for or otherwise collect such Rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney fees, upon the Secured Obligations, and in such order as Beneficiary may determine. The collection of such Rents, issues and profits, or the entering upon and taking possession of the Trust Estate, or the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default.

ARTICLE III
SECURITY AGREEMENT AND FIXTURE FILING

Section 3.01   Lien. The parties acknowledge that some of the Trust Estate may be determined under applicable law to be personal property or fixtures. To the extent that any portion of the Trust Estate may be or be determined to be fixtures or personal property, Borrower as debtor hereby grants Beneficiary as secured party a security interest in all of Borrower's right, title and interest in all such fixtures or personal property, whether now owned or existing or hereafter acquired, to secure payment and performance of the obligations secured hereunder. This Deed of Trust constitutes a security agreement under the Uniform Commercial Code of Idaho covering all such fixtures and personal property.

Section 3.02   Financing Statements. Borrower hereby authorizes Beneficiary to file, on behalf of Borrower and without its signature, one or more financing statements and such other documents as Beneficiary may from time to time require to perfect or continue the perfection of Beneficiary's security interest in any portion fo the Trust Estate. Borrower shall pay all fees and costs that Beneficiary may incur in filing such documents in public offices. In case Borrower fails to execute any financing statements or other documents for the perfection or continuation of any security interest, Borrower hereby irrevocably appoints Beneficiary as its true and lawful attorney-in-fact which power of attorney is coupled with an interest to execute any such documents on its behalf. If any financing statement or other document is filed in the records normally pertaining to personal property, that filing shall never be construed as in any way derogating from or impairing this Deed of Trust or the rights or obligations of the parties under it.

Section 3.03   Fixture Filing. This Deed of Trust constitutes a financing statement filed as a fixture filing under Article 9 of the Uniform Commercial Code in the State of Idaho, as amended or recodified from time to time, covering any portion of the Trust Estate which now is or later may become fixtures attached to the Property. The description of the Trust Estate in this Deed of Trust includes goods which are or are to become fixtures on the Property. For this purpose, the respective addresses of Borrower, as debtor, and Beneficiary, as secured party, from which information concerning the security interest may be obtained, are as set forth in the preambles of this Deed of Trust.

ARTICLE IV
REMEDIES UPON DEFAULT

Section 4.01   Events of Default. Time is of the essence hereof. Any of the following events shall be deemed an event of default hereunder:

  1. Default shall be made in the payment of any installment of interest or in the payment of principal under the Note or any other obligation secured hereby when due and the failure of Borrower to cure the same for ten (10) or more days;
  2. Borrower shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for

D EED OF T RUST

P AGE 9 OF 17


    debtors; or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Borrower or of all or any part of the Trust Estate, or of any or all of the royalties, revenues, Rents, issues or profits thereof, or shall make any general assignment for the benefit or creditors, or shall admit in writing its inability to pay its debts generally as they become due;

  1. A court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Borrower seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree shall remain unvacated and unstayed for sixty (60) days from the first date of entry thereof; or any trustee, receiver or liquidator or Borrower of all or any part of the Trust Estate, or of any or all of the royalties, revenues, Rents, issues or profits thereof, shall be appointed without the consent or acquiescence of Borrower and such appointment shall remain unvacated and unstayed for sixty (60) days;
  2. A writ of execution or attachment or any similar process shall be issued or levied against all or any part of or interest in the Trust Estate, or any judgment involving monetary damages shall be entered against Borrower which shall become a lien on the Trust Estate or any portion thereof or interest therein and such execution, attachment or similar process or judgment is not released, bonded, satisfied, vacated or stayed within sixty (60) days after its entry or levy; or
  3. There has occurred a breach of or event of default under any term, covenant, agreement, condition, provisions, representation or warranty contained in any of the Loan Documents or any part thereof, not referred to in this section, and the failure of Borrower to cure the same following thirty (30) days' written notice to Borrower; provided that if no notice or cure period is provided for the Event of Default in any of the Loan Documents, no notice or cure period shall be required herein.

Section 4.02   Acceleration Upon Default; Additional Remedies. In the event of any event of default, Beneficiary may declare all Secured Obligations to be immediately due and payable and the same shall thereupon become due and payable without any presentment, demand, protest or notice of any kind. Thereafter, Beneficiary may:

  1. Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court and without regard to the adequacy of its security, enter upon and take possession of the Trust Estate, or any part thereof, in its own name or in the name of Trustee, and do any acts which it deems, in the exercise of good faith, necessary or desirable to preserve the value, marketability or rentability of the Trust Estate, or part thereof or interest therein, increase the income therefrom or protect the security hereof and, with or without taking possession of the Trust Estate, sue for or otherwise collect the Rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection including attorney fees, upon any indebtedness secured hereby, all in such order as Beneficiary may determine. The entering upon and taking possession of the Trust Estate, the collection of such Rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default after written notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default and, notwithstanding the continuance in possession of the Trust Estate or the collection, receipt and application of Rents, issues or profits, Trustee or Beneficiary shall be entitled to exercise every right provided for in any of the Loan Documents or by law upon occurrence of any event of default, including the right to exercise the power of sale;
  2. Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof and in case of any judicial sale of the Trust Estate, or any part thereof, the Property may be sold in one parcel and as one entity or in such parcels, manner or order as the Beneficiary, in its sole discretion, may elect;

D EED OF T RUST

P AGE 10 OF 17


  1. Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Borrower's interest in the Trust Estate to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the official records of the county in which the Trust Estate is located.
  2. The waiver by Beneficiary of any default shall not constitute a waiver of any other or subsequent default.

Section 4.03   Foreclosure by Power of Sale. Should Beneficiary elect to foreclose by exercise of the power of sale herein contained, Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust and the Note and such receipts and evidence of expenditures made and secured hereby as Trustee may require.

  1. Upon receipt of such notice from Beneficiary, Trustee shall cause to be recorded, published and delivered to Borrower such notice of default and election to sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Borrower, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice of sale having been given as required by law, sell the Trust Estate at the time and place of sale fixed by it in said notice of sale, either as a whole or in separate lots or parcels or items as Trustee shall deem expedient, and in such order as it may determine, but subject to any statutory right of Borrower to direct the order in which such property, if consisting of several known lots or parcels, shall be sold, at public auction to the highest bidder for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including without limitation, Borrower, Trustee or Beneficiary, may purchase at such sale and Borrower hereby covenants to warrant and defend the title of such purchaser or purchasers.
  2. After deducting all costs, fees and expenses of Trustee and of this Trust, including costs of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the rate provided in the Note; all other obligations then secured hereby and the remainder, if any, to the person or persons legally entitled thereto in accordance with law.
  3. Trustee may postpone sale of all or any portion of the Trust Estate by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement or subsequently noticed sale, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale.

Section 4.04   Foreclosure as Mortgage. Should Beneficiary elect to foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages on real property, Beneficiary shall be entitled to recover in such proceeding all costs and expenses incident thereto (including costs on appeal), including a reasonable attorney fee (including an attorney fee on appeal) in such amount as shall be fixed by the court. Beneficiary shall be entitled to possession of the Trust Estate during any redemption period allowed under the laws of the State of Idaho.

Section 4.05   Appointment of Receiver. If an event of default shall have occurred and be continuing, Beneficiary, as a matter of right and without notice to Borrower or anyone claiming under Borrower, and without regard to the then value of the Trust Estate or the interest of Borrower therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Trust Estate, and Borrower hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of Beneficiary in case of entry as

D EED OF T RUST

P AGE 11 OF 17


provided in Section 4.02(a) and shall continue as such and exercise all such powers until the date of confirmation of sale of the Trust Estate unless such receivership is sooner terminated.

Section 4.06   Remedies Not Exclusive. Trustee and Beneficiary, and each of them, shall be entitled to enforce payment and performance of any Secured Obligations and to exercise all rights and powers under this Deed of Trust or under any Loan Documents or other agreement or any laws now or hereafter in force, notwithstanding some or all of the said Secured Obligations may now or hereafter be otherwise secured, whether by mortgage, deed of trust, pledge, lien, guaranty, assignment or otherwise. Neither the acceptance of this Deed of Trust nor its enforcement, whether by court action or pursuant to the power of sale or other powers herein contained, shall prejudice or in any manner affect Trustee's or Beneficiary's right to realize upon or enforce any other security now or hereafter held by Trustee or Beneficiary, it being agreed that Trustee and Beneficiary, and each of them, shall be entitled to enforce this Deed of Trust and any other security now or hereafter held by Beneficiary or Trustee in such order and manner as they or either of them may in their absolute discretion determine. No remedy herein conferred upon or reserved to Trustee or Beneficiary is intended to be exclusive of any other remedy herein or by law permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by any of the Loan Documents to Trustee or Beneficiary or to which either of them may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Trustee or Beneficiary and either of them may pursue inconsistent remedies. The failure on the part of Beneficiary to promptly enforce any right hereunder shall not operate as a waiver of such right.

Section 4.07   Request for Notice. Borrower hereby requests a copy of any notice of default and that any notice of sale hereunder be mailed to it at the address set forth in the first paragraph of this Deed of Trust, in addition to written notifications required by other provisions hereof.

ARTICLE V
MISCELLANEOUS

Section 5.01   Governing Law. This Deed of Trust shall be governed by the laws of the State of Idaho. In the event that any provision or clause of any of the Loan Documents conflicts with applicable laws, such conflicts shall not affect other provisions of such Loan Documents which can be given effect without the conflicting provision, and to this end the provisions of the Loan Documents are declared to be severable. The terms and provisions of the Deed of Trust cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing, signed by the party against whom enforcement of any waiver, change, discharge or termination is sought.

Section 5.02   Limitation of Interest. It is the intent of Borrower and Beneficiary in the execution of this Deed of Trust the Note and all other Loan Documents to contract in strict compliance with the laws of the State of Idaho governing the Secured Obligations. In furtherance thereof, Beneficiary and Borrower stipulate and agree that none of the terms and provisions contained in the Loan Documents shall ever be construed to create a contract for the use, forbearance or detention of money requiring payment of interest at a rate in excess of the maximum interest rate permitted to be charged by the laws of the State of Idaho governing the loan evidenced by the Note. Borrower or any guarantor, endorser, or other party now or hereafter becoming liable for the payment of the Note shall never be liable for unearned interest on the Note and shall never be required to pay interest on the Note at a rate in excess of the maximum interest that may be lawfully charged under the laws of the State of Idaho and the provisions of this section shall control over all other provisions of the Note and any other Loan Documents executed in connection herewith which may be in apparent conflict herewith. In any event, if any holder of the Note shall collect monies which are deemed to constitute interest which would otherwise increase the effective interest rate on the Note to a rate in excess of that permitted to be charged by the laws of the State of Idaho, all such sums deemed to constitute interest in excess of the legal rate shall be immediately returned to the Borrower upon such determination.

D EED OF T RUST

P AGE 12 OF 17


Section 5.03   Statements by Borrower. Borrower, within ten (10) days after being given notice by mail, will furnish to Beneficiary a written statement stating the unpaid principal of and interest on the Note and any other obligations secured by this Deed of Trust and stating whether any offset or defense exists against such Secured Obligations.

Section 5.04   Reconveyance by Trustee. Upon written request of Beneficiary stating that all Secured Obligations have been paid and upon surrender of this Deed of Trust and the Note to Trustee for cancellation and retention and upon payment by Borrower of Trustee's fees, Trustee shall reconvey to Borrower, or the person or persons legally entitled thereto, without warranty, any portion of the Trust Estate then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or persons legally entitled thereto."

Section 5.05   Notices. Whenever Beneficiary, Borrower or Trustee shall desire or be required to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered mail, postage prepaid, return receipt requested, addressed to the address set forth at the beginning of this Deed of Trust. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change.

Section 5.06   Acceptance by Trustee. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law.

Section 5.07   Captions. The captions or headings at the beginning of each section hereof are for the convenience of the parties and are not a part of this Deed of Trust.

Section 5.08   Invalidity of Certain Provisions. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the Secured Obligations, or if the lien is invalid or unenforceable as to any part of the Trust Estate, the unsecured or partially secured portion of the Borrower's obligations shall be completely paid prior to the payment of the remaining and secured portion of the Secured Obligations, and all payments made on the Borrower's obligations, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the Borrower's obligations which are not secured or fully secured by the lien of this Deed of Trust.

Section 5.09   Subrogation. To the extent that proceeds of the Note are used to pay any outstanding lien, charge or prior encumbrance against the Trust Estate, such proceeds have been or will be advanced by Beneficiary at Borrower's request, and Beneficiary shall be subrogated to any and all rights and liens owned by any owner or holder of such outstanding liens, charges and prior encumbrances, irrespective of whether said liens, charges or encumbrances are released.

Section 5.10   No Merger. If both the lessor's and lessee's estates under any lease or any portion thereof which constitutes a part of the Trust Estate shall at any time become vested in one owner, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger, and in such event, Beneficiary shall continue to have and enjoy all the rights and privileges of Beneficiary as to the separate estates. In addition, upon the foreclosure of the lien created by this Deed of Trust on the Trust Estate pursuant to the provisions hereof, any leases or subleases then existing and created by Borrower shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure sale shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice thereof to such tenant or subtenant.

Section 5.11   Transfer of Interest. Should Borrower sell, convey, transfer, assign, lease, encumber, or in any other manner, dispose of the Trust Estate or any part thereof, or turn over the possession,

D EED OF T RUST

P AGE 13 OF 17


management or operation of the Trust Estate to any person, firm or corporation, or sell, convey, transfer, encumber, or dilute more than fifty percent (50%) of the current outstanding capital or ownership of the Borrower, or agree to do the same, without prior written consent of the Beneficiary, then Beneficiary shall have the right at its option to declare all Secured Obligations immediately due and payable. Consent to any such transaction shall not be deemed to be consent or waiver of the necessity of consent to any other transaction. If Beneficiary consents to any such transaction and/or to assumption Secured Obligations, Borrower shall not be released from any Secured Obligations. Upon the occurrence of any sale, conveyance, or transfer of the Trust Estate, in addition to the consent required aforesaid, Beneficiary shall be paid a reasonable service charge for changing its records to reflect such transaction.

Section 5.12   Cross-Collateralization. Any collateral under the Loan Documents, including, without limitation, the Property and the Wisconsin Property, shall be deemed to be collateral for any and all obligations evidenced by any and all Loan Documents, including without limitation the Secured Obligations, now existing or hereafter arising, and Beneficiary shall have the right to exercise any and all remedies available to it in order to realize upon some or all of such collateral to satisfy some or all of such obligations in the event of any default by Borrower.

Section 5.13   Conflict . In the event of a conflict between the provisions of this Deed of Trust and any other Loan Document, the provisions of this Deed of Trust shall control.

[end of text; signature page follows]

D EED OF T RUST

P AGE 14 OF 17


IN WITNESS WHEREOF, Borrower has executed this Deed of Trust as of the day and year first written above.

 

BORROWER: S&W Seed Company, a Nevada corporation

 

 

 

By: _____________________________

Name: __________________________

Title: _________________________

 

 

 

 

STATE OF ___________________)

) ss

County of ___________________)

 

On this ____ day of _______________, 2014, before me, a Notary Public in and for the State, personally appeared _____________________ , known or identified to me to be the __________________ of S&W Seed Company , a Nevada corporation, the person who subscribed said corporation's name to the foregoing instrument, and acknowledged to me that s/he executed the same in said corporations's name.

S
E
A
L

______________________________________________
Notary Public for __________________________
Residing at: ________________________________
My Commission Expires on ________________________

 

 

 

 

D EED OF T RUST

P AGE 15 OF 17


EXHIBIT A

Legal Description

Parcel I:

The West 220 feet of the East 1022 feet of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West, Boise Meridian, Canyon County, Idaho; and

A portion of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, being more particularly described as follows:

Commencing at the Southeast corner of said Southeast quarter of the Northeast quarter of Section 16; thence

South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter a distance of 1022.00 feet to the True Point of Beginning; thence continuing

South 89°55'04" West along said South line, a distance of 30.00 feet to a point; thence

North on a line parallel to the East line of said Southeast quarter of the Northeast quarter of Section 16, a distance of 190.00 feet to a point; thence

North 89°55'04" East, along a line parallel with the South line of said Southeast quarter of the Northeast quarter, a distance of 30.00 feet; thence

South along a line parallel to the East line of said Southeast quarter of the Northeast quarter, a distance of 190.00 feet to the True Point of Beginning.

Parcel II:

A parcel of land located in the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, and is more particularly described as follows:

Commencing at the East quarter corner of said Section 16, being a P.K. Nail and the centerline intersection of Lake Shore Drive and 12th Avenue South; thence

South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter, and the centerline of Lake Shore Drive, a distance of 1022.00 feet to a P.K. Nail, being the True Point of Beginning; thence continuing

South 89°55'04" West along said South line of the Southeast quarter of the Northeast quarter and the centerline of Lake Shore Drive, a distance of 300.20 feet to the Southwest corner of said parcel, being a 5/8 inch steel pin, from whence a 1/2 inch steel pin bears

North 0°06'20" West, a distance or 33.00 feet; thence leaving said South line of the Southeast quarter of the Northeast quarter and the centerline of Lake Shore Drive

North 0°06'20" West, along the West line of said Southeast quarter of the Northeast quarter, a distance of 1324.04 feet to the Northwest corner of said parcel being a 5/8 inch steel pin, and the Northeast 1/16 corner of said Section 16; thence

North 89°55'27" East along the North line of said Southeast quarter of the Northeast quarter, a distance of 302.64 feet to the Northeast corner of said parcel, being a 1/2 inch steel pin; thence

South and parallel with the East line of said Southeast quarter of the Northeast quarter, a distance of 1324.01 feet to the True Point of Beginning.

Excepting Therefrom:

A portion of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, being more particularly described as follows:

Commencing at the Southeast corner of said Southeast quarter of the Northeast quarter of Section 16; thence

South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter a distance of 1022.00 feet to the True Point of Beginning; thence continuing

South 89°55'04" West along said South line, a distance of 30.00 feet to a point; thence

North on a line parallel to the East line of said Southeast quarter of the Northeast quarter of Section 16, a distance of 190.00 feet to a point; thence

D EED OF T RUST

P AGE 16 OF 17


North 89°55'04" East, along a line parallel with the South line of said Southeast quarter of the Northeast quarter, a distance of 30.00 feet; thence

South along a line parallel to the East line of said Southeast quarter of the Northeast quarter, a distance of 190.00 feet to the True Point of Beginning.

D EED OF T RUST

P AGE 17 OF 17


EXHIBIT 10.11

CONFIDENTIAL
EXECUTION VERSION

Patent License Agreement

This Patent License Agreement ( "Agreement" ) is made this December 31, 2014 (the "Effective Date" ), by and between Pioneer Hi-Bred International, Inc., an Iowa corporation, with headquarters at 7100 NW 62 nd Avenue, P.O. Box 1014, Johnston, Iowa 50131-1014, US (hereafter "Pioneer" ) and S&W Seed Company, a Nevada corporation, with headquarters at 25552 South Butte Avenue, Five Points, California 93624 (hereafter "Licensee" ). Licensee or Pioneer, a "Party" , and jointly, the "Parties" .

Recitals

  1. WHEREAS, Pioneer and Licensee are parties to that certain Asset Purchase and Sale Agreement dated December 19, 2014 (the "APSA" ), pursuant to which Licensee and/or its Affiliates purchased or licensed from Pioneer and/or its Affiliates, and Pioneer and/or its Affiliates sold or licensed to Licensee and/or its Affiliates, certain assets associated with the development of specified commercial alfalfa seed, as provided therein.
  2. Pioneer non-exclusively owns certain Patent Rights related to a seed coating treatment, as defined herein, which were developed by inventors John M. Lyons, Richard L. Long and G. Edwin Burgess. John M. Lyons and G. Edwin Burgess each assigned their rights in the invention subject to the Patent Rights to Pioneer on January 6, 1998 and January 7, 1998, respectively, and the assignment was recorded at the USPTO on April 29, 1999, at Reel/Frame 010006/0343. Richard L. Long assigned his rights in the invention subject to the Patent Rights to Coating Machinery Systems, Inc. on January 6, 1998, and the assignment was recorded at the USPTO on April 29, 1999, at Reel/Frame 010006/0303.
  3. Licensee wishes to obtain a license from Pioneer under Patent Rights to manufacture, have manufactured and use the seed coating treatment, and Pioneer is willing to provide such rights to Licensee.
  4. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to them in the APSA.

NOW, THEREFORE, in consideration of the mutual covenants and promised herein contained, the Parties agree as follows:

Article 1 - Definitions

1.1   "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

1


"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.

1.2   "APSA" is defined in the Recitals.

1.3   "Licensed Field" means a seed coating for alfalfa seed.

1.4   "Licensed Product" means any seed coating for alfalfa seeds produced and used by or behalf of Licensee or its Affiliates which is covered by an issued, valid, unexpired and unabandoned claim in Patent Rights pursuant to this agreement.

1.5   "License Term" is defined in Section 4.2 .

1.6   "Licensed Territory" means the United States.

1.7   "Patent Rights" means Pioneer's rights claimed in United States Patent Number 6,202,346, which has a 20 year term from the patent's effective filing date of October 30, 1997 (expiration date October 30, 2017).

1.8   "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.

Article 2: Rights Granted to Licensee

2.1   Subject to the terms of this Agreement, Pioneer hereby grants to Licensee and its Affiliates, and Licensee hereby accepts and accepts on behalf of its Affiliates, during the License Term, a royalty-free, non-exclusive license, with the right to grant sublicenses, in the Licensed Field, to make, have made, use, sell, offer to sell, import, export, transfer, distribute or otherwise dispose of coated alfalfa seed, which coating is a Licensed Product, in the Licensed Territory. For clarity, no rights are granted for non-alfalfa seed.

2.2   The rights acquired herein by Licensee are transferable.

2.3   The scope of the license in Section 2.1 is strictly limited to the grant therein. Licensee agrees not to use any of the rights granted in Section 2.1 for any other purpose.

2


2.4   Pioneer covenants and agrees that it shall not, during the License Term, license the Patent Rights to any Person (other than Pioneer's Affiliates) within the Licensed Field in the Licensed Territory.

Article 3: Representations and Warranties

Pioneer hereby represents and warrants to Licensee that as of the date of this Agreement, to Pioneer's knowledge:

(a) no written claim or demand of any Person has been made nor is there any Proceeding that is pending or Threatened that challenges the rights of Pioneer or its Affiliates in respect of the Patent Rights;

(b) none of the Patent Rights are subject to any outstanding Order or stipulation by or with any Governmental Body; and

(c) none of the Patent Rights have been adjudged invalid or unenforceable in whole or part.

Article 4: Term and Termination

4.1 Subject to the provisions in the APSA, this Agreement may not otherwise be terminated by either Party .

4.2 This Agreement expires upon expiration of United States Patent Number 6,202,346 as provided in the Patent Rights (the "License Term" ).

 

[Signature page follows]

3


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

 

 

 

PIONEER :

 

PIONEER HI-BRED INTERNATIONAL, INC.

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

LICENSEE :

 

S&W Seed Company

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

4


EXHIBIT 10.12

CONFIDENTIAL
EXECUTION VERSION

PATENT ASSIGNMENT AGREEMENT

This Patent Assignment Agreement (this "Agreement" ) is made as of the 31st day of December, 2014 (the "Effective Date" ), by and between Pioneer Hi-Bred International, Inc., an Iowa corporation with a principal place of business at 7100 N.W. 62nd Avenue, Johnston, IA 50131, USA ( "Seller" ) and S&W Seed Company, a Nevada Corporation with a principal place of business at 25552 South Butte Avenue, Five Points, California 93624 ( "Buyer" ). Unless otherwise defined herein, capitalized terms shall have the meaning ascribed to them in that certain Asset Purchase and Sale Agreement dated as of December 19, 2014 by and between Seller and Buyer (the "APSA" ).

WHEREAS, Seller is the owner of the Transferred Patents;

WHEREAS, in connection with the Contemplated Transactions, Seller desires to assign to Buyer, and Buyer desires to accept from Seller, all of Seller's right, title and interest in and to the Transferred Patents; and

WHEREAS, this Agreement is being executed and delivered by the parties pursuant to Section 5.1 of the APSA.

NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows:

ARTICLE 1. INTELLECTUAL PROPERTY RIGHTS

1.1 Seller hereby assigns, transfers and sets over unto Buyer, its successors and assigns, Seller's entire right, title, and interest in and to the Transferred Patents, and any and all continuations, continuations-in-part, renewals, reexaminations, reissues, divisionals, extensions, and foreign counterparts thereof, all priority rights pursuant to the International Convention for the Protection of Industrial Property for the Transferred Patents, and all rights to sue for, to claim and to recover for all past, present and future infringement thereof; the same to be held and enjoyed by Buyer for its own use and benefit, to the full end of the term for which the Transferred Patents are granted, as fully and entirely as the same would have been held by Seller had this assignment not been made.

1.2 Seller will cooperate in executing appropriate documents reasonably requested by Buyer to complete formalities for perfecting the assignment and recording of the Transferred Patents, including, without limitation, assignments from Seller substantially in the form of assignment attached hereto in Schedule A , upon request of Buyer. Further, Seller agrees that, upon request and without further compensation, Seller and its employees, consultants, legal representatives, and its and their successors and/or assigns, will perform any and all lawful acts, including the execution of oaths, assignments, powers of attorney, and any and all other papers, which Buyer, its successors, assigns, and/or representatives shall reasonably consider necessary for vesting, perfecting, recording, or maintaining the title of Buyer, its successors and assigns, to said Transferred Patents. All costs associated with the foregoing, including, but not limited to, all legalization and notarization costs, shall be borne by Buyer.

1


1.3 To the extent that any conflict exists between the terms of the form of assignment in Schedule A and the terms of this Agreement, the terms of this Agreement shall control.

1.4 Warranties; Limitation on Liability .

(a) Nothing in this Agreement shall be construed as:

(i) a warranty or representation by Seller as to the validity or scope of any of the Transferred Patents;

(ii) a warranty or representation that the practice rights under the Transferred Patents are, or will be, free from infringement of any patents of third parties; or

(iii) any obligation on Seller to furnish any know-how.

(b) EXCEPT AS SET FORTH IN THE APSA, SELLER MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL, EXPRESS OR IMPLIED WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT) WITH RESPECT TO THE TRANSFERRED PATENTS OR THE DEVELOPMENT, USE, PRODUCTION, MANUFACTURE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS RELATED TO THE TRANSFERRED PATENTS. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS).

ARTICLE 2. DISPUTE RESOLUTION

2.1 In the event any dispute between the parties involving the Transferred Patents cannot be solved by good faith discussions between the parties, such dispute arising out of or relating to a party's performance or non-performance under this Agreement, or the interpretations, validity or effectiveness of this Agreement, and any other provision of this Agreement, shall be resolved in accordance with Section 10.3 of the APSA.

2.2 This Agreement shall be governed by the substantive laws of the State of Delaware without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any arbitration agreement or award. The parties hereto do hereby irrevocably (a) submit themselves to the personal jurisdiction of such courts, (b) agree to service of such courts' process upon them with respect to any such proceeding, (c) waive any objection to venue laid therein or based upon forum non conveniens and (d) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 10.2 of the APSA (as such address may be updated from time to time in accordance with the terms of Section 10.2 of the APSA).

2.3 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.

2


ARTICLE 3. MISCELLANEOUS

3.1 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 and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel and accountants.

3.2 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 or other electronic means; 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
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

3.3 If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

3


3.4 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 expressly provided herein, nothing expressed or referred to in this Agreement shall be construed to give any person or entity 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.

3.5 This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the APSA and 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, 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, the Schedules or the Exhibits hereto.

3.6 The headings of Articles and Sections in this Agreement and the headings in the 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.

3.7 Notwithstanding any termination of this Agreement, the provisions of Articles 2 and 3 will survive the expiration or termination of this Agreement and will remain in effect.

3.8 This Agreement may be executed in any number of counterparts (including via facsimile or portable document format (PDF)), each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

4


3.9 Neither the making nor the acceptance of this Agreement shall enlarge, restrict or otherwise alter or modify the terms of the APSA or constitute a waiver or release by Buyer or Seller of any liabilities, duties or obligations imposed upon any of them by the terms of the APSA. Seller makes no representations or warranties, express or implied, with respect to any of the Transferred Patents, other than the representations and warranties expressly made by Seller in Section 1.4 and the APSA.

3.10 The terms and conditions of this Agreement may not be superseded, modified, or amended except in a writing stating that it is such a modification and signed by an authorized representative of each party hereto.

[Signature Page Follows]

5


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

PIONEER HI-BRED
INTERNATIONAL, INC.

S&W SEED COMPANY

   
   

By: _______________________________________

By: _________________________________________

Name: _____________________________________

Name:_________________________________________

Title: _____________________________________

Title: _________________________________________

Signature Page to Patent Assignment Agreement


EXHIBIT 10.13

CONFIDENTIAL
EXECUTION VERSION

KNOW-HOW TRANSFER AGREEMENT

This Know-How Transfer Agreement (including all Schedules hereto, this "Agreement" ) is made this 31st 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" )

WHEREAS , Seller and Buyer have entered into that certain Asset Purchase and Sale Agreement dated December 19, 2014 (as amended, the "APSA" ), pursuant to which Seller (and/or its applicable Affiliates) shall sell to Buyer (and/or its applicable Affiliates) and Buyer (and/or its applicable Affiliates) shall purchase from Seller (and/or its applicable Affiliates), the Purchased Assets in accordance with the terms and subject to the conditions contained therein;

WHEREAS , in connection with the Contemplated Transactions, Seller desires to convey to Buyer, and Buyer desires to accept from Seller, all of Seller's right, title and interest in and to the Know-How expressly identified and set forth on Schedule 1 (the "Transferred Know-How" );

WHEREAS , this Agreement is being executed and delivered by the parties pursuant to Section 5.1 of the APSA; and

WHEREAS , unless otherwise defined herein, capitalized terms shall have the meaning ascribed to them in the APSA.

NOW THEREFORE , The parties hereto, intending to be legally bound hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows:

  1. This Agreement shall be effective as of the date first above written.
  2. Transferred Know-How Grant . Seller hereby assigns, transfers and sets over unto Buyer, its successors and assigns, Seller's entire right, title and interest in and to the Transferred Know-How, together with all rights and powers arising or accrued therefrom including, without limitation, all intellectual property rights with respect thereto for which protection has not already been sought, all rights therein provided by international conventions and treaties, all rights to income, royalties and license fees deriving therefrom, the right to sue for damages and other remedies in respect of present and future infringement or dilution of or damage or injury thereto; subject , however , to all limitations and restrictions in this Agreement and in the APSA.
  3. EXCEPT AS SET FORTH IN THE APSA, SELLER MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL, EXPRESS OR IMPLIED WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT) WITH RESPECT TO THE TRANSFERRED KNOW-HOW OR THE DEVELOPMENT, USE, PRODUCTION, MANUFACTURE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS RELATED TO THE TRANSFERRED KNOW-HOW. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ITS AFFILIATES FOR ANY

1


    INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS).

  1. 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 or other electronic means; 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):
  2. If to Seller :

    Pioneer Hi-Bred International, Inc.
    Attention: President
    DuPont Pioneer
    7100 N.W. 62nd Avenue
    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

  3. Dispute Resolution; Governing Law . Any dispute arising under this Agreement shall be resolved in the manner specified in Section 10.3 of the APSA, the terms of which are hereby incorporated by reference. This Agreement shall be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles, and, except as otherwise provided in Section 10.3 of the APSA, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement. The parties do hereby irrevocably (a) submit themselves to the personal jurisdiction of such courts, (b) agree to service of such courts' process upon them with respect to any such Proceeding, (c) waive any objection to venue

2


    laid therein and (d) consent to service of process by registered mail, return receipt requested in accordance with and at the address set forth in Section 10.2 of the APSA (as such address may be updated from time to time in accordance with the terms of Section 10.2 of the APSA). The parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the parties. 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.

  1. Confidentiality . Information exchanged between the parties under this Agreement shall be deemed Confidential Information subject to Section 5.3 of the APSA.
  2. Successors and No Third-Party Rights . 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 expressly provided herein, nothing expressed or referred to in this Agreement shall be construed to give any person or entity 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.
  3. Entire Agreement and Modification . This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the APSA and 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, the Schedules hereto shall be deemed listed, set forth, described and otherwise disclosed on or in all other parts of this Agreement, the Schedules hereto.
  4. 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.
  5. Section Headings; Construction . The headings of Articles and Sections in this Agreement and the headings in the Schedules 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) or Schedule , such reference shall be to the corresponding section (or article, clause or preamble) of, or the corresponding 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

3


    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.

  1. 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]

IN WITNESS WHEREOF, Seller and Buyer have executed and delivered this Agreement as of the date first written above.

 

SELLER :

 

PIONEER HI-BRED INTERNATIONAL, INC.

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

 

BUYER :

 

S&W SEED COMPANY

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

[Signature Page to Know-How Trsnsfer Agreement]

EXHIBIT 10.14

CONFIDENTIAL
EXECUTION VERSION

DATA TRANSFER AGREEMENT

This Data Transfer Agreement (" DTA ") is made as of the date set forth below (the " Effective Date ") between Pioneer Hi-Bred International, Inc. and its Affiliates (" Pioneer ") and the undersigned company (" Company "). The parties hereto hereby agree as follows:

1.0 SCOPE OF DTA

This DTA shall apply to all Transfers of Personal Information from Pioneer to Company and the Company Affiliates and to the Processing of Personal Information by Company and the Company Affiliates as reflected in commercial agreements between the parties. To the extent any Company Affiliate receives Personal Information from Pioneer or a Pioneer Affiliate, Company shall cause each such Company Affiliate to comply with the terms and conditions of this DTA, as if such affiliate were a named party to this DTA. Company shall be liable for the actions or omissions of each Company Affiliate with respect to all Transfers and Processing of Personal Information in accordance with the terms of this DTA. The terms of this DTA shall prevail in the event of any conflict with any terms in any other written agreements between the parties, to the extent the conflict relates to the transfer of Personal Information.

If any Transfer is subject to any law or regulation of any country which requires a change in the terms of this DTA or additional actions, the parties will use reasonable commercial efforts to promptly amend this DTA or otherwise comply with any such laws.

2.0 WARRANTIES

2.1 Warranties, Representations, and Covenants by Pioneer

With respect to each Transfer of Personal Information, Pioneer hereby warrants, represents, and covenants to Company that:

  1. Pioneer has obtained any and all legally required consents and has the right to Transfer Personal Information to Company and the Company Affiliates, as applicable; and
  2. Pioneer has full legal authority to give the warranties, make the representations, enter into the covenants, and fulfill the undertakings set out in this DTA.

2.2 Warranties, Representations, and Covenants by Company

With respect to each Transfer of Personal Information, Company hereby represents, warrants and covenants to Pioneer regarding such Personal Information that:

  1. Company will comply with all Applicable Laws and this DTA with respect to the receipt, use, Processing, and any subsequent transfer of such Personal Information to a third party by Company;
  2. Company has full legal authority to give the warranties, make representations, enter into the covenants, and fulfill the undertakings set out in this DTA.
  3. To the extent applicable, Company has obtained any and all legally required consents and has the right to Transfer Personal Information to Pioneer;

3.0 OBLIGATIONS OF COMPANY

3.1 Company may only use Personal Information for the purpose of providing products or services to Pioneer, in compliance with Applicable Law, and will not use Personal Information received from Pioneer for any purpose, including for its own commercial benefit, not specifically permitted in writing by this DTA and any underlying commercial agreement. Except with the prior written consent of Pioneer, Company shall not:

  1. contact Individuals to obtain consent for additional types of Processing;
  2. undertake any direct marketing to any Individuals; or
  3. use any Personal Information as the basis to grant or deny any material benefit to an individual, the determination of which is wholly automated.

3.2 Cross Border Obligations

  1. Where Company and any Company Affiliate, as applicable, receives Personal Information from Pioneer and is located in any of the countries listed in the Special Jurisdictional Provisions (attached as Exhibit C), or from Pioneer that relates to Personal Information Collected or controlled by Pioneer Affiliates located in one of the countries listed in the Special Jurisdictional Provisions, Company will treat such Personal Information in accordance with the Special Jurisdictional Provisions.
  2. Where Company and any Company Affiliate, as applicable, receives Personal Information from Pioneer or another Pioneer Affiliate which has certified to the Safe Harbor, which relates to Personal Information Collected or controlled by Pioneer Affiliates located in the European Economic Area or Switzerland (" European Personal Information "),

1


CONFIDENTIAL
EXECUTION VERSION

    Company shall Process the European Personal Information in accordance with the relevant Safe Harbor Principles as they may be amended from time to time (a copy of the current principles are attached as Exhibit B) with the exception of the notice, choice and enforcement principles.

  1. Where Company and any Company Affiliate, as applicable, receives Personal Information directly from any Pioneer Affiliate located in the European Economic Area or Switzerland, Company (and Company Affiliates) shall enter into appropriate data transfer agreements with any individual Pioneer Affiliate) as needed to satisfy cross-border transfer obligations relating to Personal Information, such as the Standard Contractual Clauses issued by the European Commission or other similar agreements.
  2. Where Company and any Company Affiliate, as applicable, is in the US and has certified to the EU-US and/or Swiss-US Safe Harbor, Company will handle all European Personal Information consistently with the Safe Harbor.

3.3 Use of Security Controls

  1. Company shall have a written comprehensive security program that protects Personal Information Transferred by Pioneer and includes appropriate and commercially reasonable technical and organizational Security Controls, to prevent accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against all other unlawful forms of Processing or as otherwise required or deemed to be adequate under any Applicable Law. Such Security Controls will be at least as stringent as the data protection rules that Company uses to protect its own employee, customer, or supplier Personal Information.
  2. In the event that there is any unauthorized access, unauthorized, unlawful or accidental loss, destruction, acquisition of or damage to Personal Information in Company's or any Company Affiliate's control (Security Incident), Company will immediately notify Pioneer (and in any event within 24 hours) of such unauthorized access or acquisition and will fully cooperate with Pioneer to investigate, remediate, and mitigate the effects of the Security Incident and to comply with any notification provisions to individuals or regulatory authorities that Pioneer deems appropriate. To the extent that such Security Incident arises out of an act or omission by Company, any Company Affiliate or their respective personnel, or is a breach of this DTA by Company or any Company Affiliate, Company will be responsible for any liability, claims, costs or expenses arising from such unauthorized access or acquisition.
  3. Company will hold Personal Information in strict confidence and require employees and personnel who will be provided access or will otherwise Process Personal Information to protect all Personal Information in accordance with the requirements of this Agreement (including during the term of their employment and thereafter).
  4. Company will limit access to Personal Information to only those individuals who have a legitimate business need to access the Personal Information and will grant access to the smallest number of necessary individuals. Company will also implement appropriate technical and physical access controls (such as passwords, card key readers, and locks on files) to limit access to Personal Information.
  5. Company will provide employees and personnel who will be provided access, or will otherwise Process Personal Information, with appropriate training regarding information security and the protection of Personal Information.
  6. Company will comply with any Security Controls required by any country having jurisdiction over the Personal Information.
  7. Company will encrypt, using industry standard encryption tools, all Special Personal Information that Company: (i) transmits or sends wirelessly or across public networks; (ii) stores on laptops or storage media; and (iii) stores on portable devices, where technically feasible. Company shall safeguard the security and confidentiality of all encryption keys associated with encrypted Special Personal Information.

3.4 Accuracy

Company will take reasonable steps to maintain the accuracy of Personal Information for the intended purposes of Processing and will assist Pioneer in updating or deleting Personal Information as requested by Pioneer.

3.5 Access and Correction

Company shall reasonably cooperate with Pioneer to provide all Individuals with the ability to effectively exercise any right to access and correct Personal Information. Company shall reasonably cooperate in correcting any Personal Information that Pioneer determines contains inaccurate Personal Information regarding Individuals who have requested such

2


CONFIDENTIAL
EXECUTION VERSION

correction, provided that Pioneer communicates such corrected Personal Information to Company.

3.6 Supervision of Personnel

Company shall be fully responsible and liable for the acts or omissions of its personnel with access to Personal Information and will hold those of its personnel with access to Personal Information accountable for violations of this DTA.

3.7 Notification and Implementation of Opt-Outs

Company will timely notify Pioneer of (i) any Opt-Out or any other choice or request for access or rectification, blocking or similar requests made by any Individual, and shall not respond to any such requests unless expressly authorized to do so by Pioneer; (ii) any complaint relating to the Processing of Personal Information, including allegations that the Processing infringes on an Individual's rights under Applicable Law; or (iii) any order, demand, warrant, or any other document purporting to compel the production of Personal Information under Applicable Law. Company shall use and Process all such Personal Information in accordance with all such Opt-Outs or other choices and will promptly notify Pioneer of such actions, and shall cooperate with Pioneer with respect to any action taken relating to such request, complaint, or order or other document.

3.8 Risk of Loss in Transfer

Company shall bear the risk of loss associated with any alteration, degradation or corruption of Personal Information during any Transfer to or from Company and while such Personal Information is in Company's possession, to the extent any such losses arise out of the negligence, willful misconduct, or breach of this DTA by Company or any third party having been provided with access to Personal Information by Company.

3.9 Subsequent Transfers

Company shall not make any Transfers of Personal Information to any third party, including contractors, affiliates or service providers of Company received from Pioneer, unless it has received written permission from Pioneer to make such a Transfer, except where such disclosure, transfer or access is mandated by Applicable Law (subject to Company providing Pioneer with prompt written notice of such requirement to transfer or disclose, unless such notice is prohibited by Applicable Law). If Pioneer has agreed, then to the extent that Company retains a contractor or service provider in order to provide services to Pioneer and such contractors or service providers have granted access to Personal Information, Company must enter into an agreement with each contractor or service provider that is at least as stringent as this DTA and imposes on each contractor or service provider all of the obligations under this DTA. Such agreement shall be provided to Pioneer promptly upon request. Company shall remain accountable and responsible for all actions by such third parties with respect to the disclosed or transferred Personal Information.

3.10 Retention and Destruction of Personal Information

Company shall retain all Personal Information only for the period necessary to complete the purposes for which the Personal Information was Transferred to Company by Pioneer. Upon the expiration or earlier termination of the underlying commercial agreement, Company will cease Processing and will permanently destroy all of Pioneer's Personal Information so that the Personal Information is unreadable or return the Personal Information to Pioneer, as instructed by Pioneer. Company will obtain permission from Pioneer before destroying any of the Pioneer Personal Information.

3.11 Direct Marketing and Online Tracking

  1. To the extent that Company provides any direct marketing or tracking services to Pioneer, Company shall provide notice to, and obtain consent as appropriate under direct marketing and commercial communications laws.
  2. By providing Personal Information to Pioneer relating to direct marketing or tracking, Company represents and warrants that it has provided all necessary notices and obtained all necessary consents to provide the Personal Information for those purposes.
  3. Company will comply with all Applicable Laws when using cookies and similar online tracking technologies on behalf of Pioneer, on any website operated by Pioneer, and shall refrain from engaging in any behavior which renders or is likely to render Pioneer in breach of Applicable Laws.

3.12 Inspection

Company shall provide Pioneer and its authorized representatives with access to, and the right to inspect, all Records relating to the Collection, Processing or Transfer of Personal Information, all Processing premises and all Security Controls used to protect such Personal Information subject to this DTA. Unless otherwise agreed, any such inspection shall occur only at the business offices or data centers of the Company, during normal business hours, and shall be conducted by a mutually acceptable third party inspector. Pioneer shall pay the third party inspection costs of any such inspection but shall not be obligated to reimburse Company for any costs incurred by Company in the inspection process.

3


CONFIDENTIAL
EXECUTION VERSION

3.13 Provision of DTA to Individuals

Company and Pioneer shall make copies of this DTA available to any Individual, upon reasonable request by the Individual.

3.14 Regulatory Investigations

Company and Pioneer shall cooperate in any regulatory investigation or in any internal investigation by either party arising out of this DTA, whether or not related to a regulatory investigation. In addition, both parties shall cooperate in responding to any inquiry by any Individual. In the event of any such investigation or inquiry, upon notice to the other party, either party may suspend any further Transfers for so long as may be necessary to obtain assurances that any additional Transfers will not provide the basis for further regulatory action or possible liabilities. Except as provided in Section 3.15 such suspension will not relieve either party of any liability arising from a default of this DTA or any other related commercial agreements. A default under this DTA will, at the option of the non-defaulting party, be deemed to be a default under the terms and conditions of any such related commercial agreements.

3.15 Right to Suspend Transfers

If the performance of this DTA will violate Applicable Law, then either Company or Pioneer shall have the right to suspend, and not execute, any such Transfer but only to the extent that such Transfer violates Applicable Law. If any such suspension is material, then such suspension will be treated as an event of force majeure under the terms and conditions of any related commercial agreements between the parties.

3.16 Allocation of Costs

Unless otherwise specified, Company and Pioneer shall perform all of their obligations under this DTA at their own respective cost and expense.

4.0 INDEMNITIES AND LIMITATION OF LIABILITY

4.1 Indemnity

Company and Pioneer shall each indemnify, defend, and hold harmless the other party against all third party claims for liabilities, damages, losses or expenses incurred to the extent arising out of the negligence, willful misconduct, breaches of this DTA, or violations of Applicable Law in the performance of this DTA by the party at fault, its employees, agents, subcontractors or assigns. Further, in the event the parties are jointly at fault, they agree to indemnify each other in proportion to their relative fault.

4.2 Scope

The claims for liabilities, damages, losses or expenses covered under Section 4.1 include, but are not limited to: settlements, judgments, court costs, reasonable attorneys' fees and other litigation expenses, fines and penalties arising out of actual or alleged (a) injury to or death of any person, including employees of each party, or (b) loss or damage to property, including intangible property.

4.3 Limitations

EXCEPT FOR THE INDEMNITY OBLIGATIONS CONTAINED IN THIS SECTION 4, VIOLATIONS OF ANY LAW, ANY DAMAGES ARISING FROM PERSONAL INFORMATION LOSS RESULTING FROM THEFT OF A COMPUTER OR UNAUTHORIZED ACCESS TO OR USE OF THE PERSONAL INFORMATION BY EMPLOYEES, SUBCONTRACTORS OR AGENTS OF THE COMPANY OR COMPANY AFFILIATES, ANY OTHER UNAUTHORIZED DISCLOSURES OF PERSONAL INFORMATION IN VIOLATION OF ANY CONFIDENTIALITY OBLIGATIONS; OR THE FAILURE TO OTHERWISE PROVIDE ADEQUATE PHYSICAL AND ELECTRONIC SECURITY AS REQUIRED BY THIS DTA, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON LOSS OF PROFITS AND/OR LOSS OF BUSINESS ARISING OUT OF OR IN ANY WAY RELATED TO THIS DTA OR THE PERFORMANCE THEREOF, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

4.4 Confidentiality

Personal Information will be deemed to be confidential information of the party disclosing the Personal Information under the terms of any confidentiality provisions of any applicable commercial agreement or separate confidentiality or non-disclosure agreement between the parties.

4.5 Survival

The provisions of this Section 4 shall survive the termination of this DTA.

5.0 TERM AND TERMINATION

This Agreement shall be effective as of the date specified below the signature block, unless specified otherwise with respect to a particular entity in the signature pages of this Agreement.

In the event of a material breach by Company or Pioneer of this DTA, the non-breaching party may terminate this DTA, by written notice to the breaching party, 30 days after the party first delivered written notice declaring such breach, and upon the failure of such breach to be cured within such 30 days. With

4


CONFIDENTIAL
EXECUTION VERSION

respect to any Transfers occurring prior to the termination of this DTA, the provisions of Section 3 shall survive such termination.

6.0 MISCELLANEOUS

6.1 Choice of Law

Except as otherwise required by Applicable Law:

  1. This DTA will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to principles of conflict or choice of laws.
  2. The courts within the State of Delaware will be the only courts of competent jurisdiction for enforcement or interpretation of this DTA.
  3. Company and Pioneer do hereby irrevocably submit themselves to the personal jurisdiction of the courts of the State of Delaware, including the U.S. District Courts for the District of Delaware.

6.2 Change of Law

In the event of a change in Applicable Law which would make the continued Transfer of Personal Information under this DTA, or the continued Processing of such Personal Information by Company, unlawful, then, prior to the effective date of any such change in Applicable Law, either (a) if commercially reasonable alternatives exist for adjusting the procedures for Transfer or Processing in order to avoid a violation of Applicable Law, then Pioneer and Company, at their own respective cost and expense, shall cooperate by implementing such alternatives, or (b) if no such alternatives exist, then either Pioneer or Company shall be entitled to terminate all further Transfers which, if executed, would be unlawful following the change in Applicable Law. Any such suspension of Transfers will be treated as an event of force majeure under the terms and conditions of any related commercial agreement between the parties relating to such Collection of Personal Information, Processing or Transfer and may be the basis for termination of such related commercial agreement.

6.3 Severability

Any provision of this DTA that is determined by a court of competent jurisdiction to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this DTA or affecting the validity or enforceability of such remaining provisions.

6.4 Waiver; Successors & Assigns

No oral modification or waiver of any of the provisions of this DTA shall be binding upon either Company or Pioneer. This DTA is for the benefit of, and shall be binding upon, the parties and their respective successors and assigns.

6.5 Notices

Whenever Company or Pioneer desires or is required to give any notice, demand, or request with respect to this DTA, such communication shall be made in writing. Communications in writing must be delivered by a courier service that confirms delivery in writing or via certified or registered mail, postage prepaid, return receipt requested, addressed to the representative as set forth in Exhibit A.

6.6 Complaints

Company and Pioneer agree to designate a person to receive and respond to any complaints by Individuals about their Personal Information.

6.7 Third Party Rights

No Individual or third party with Personal Information has any other beneficial rights under this DTA, except, the parties agree that Pioneer Affiliates are intended third-party beneficiaries of this Agreement and that this Agreement is intended to inure to the benefit of such Pioneer Affiliates. Without limiting the foregoing, Pioneer Affiliates will be entitled to enforce this Agreement as if each was a signatory to this Agreement.

6.8 Amendments in Writing

Company and Pioneer agree that any and all amendments to this DTA must be made in writing and signed by both parties. No amendment can be made by electronic means.

6.9 Counterparts

This DTA may be executed by the parties on any number of separate counterparts, and all executed counterparts shall constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart. For purposes of this DTA, a document (or signature page thereto) signed and transmitted by facsimile machine or e-mail is to be treated as an original document. The signature of any party thereon, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document.

7.0 DEFINITIONS

The following capitalized terms shall have the following meanings when used in this DTA:

7.1   " Applicable Law" means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (including any and all legislative and/or regulatory amendments or successors thereto), to which a party to this Agreement is subject and which

5


CONFIDENTIAL
EXECUTION VERSION

is applicable to a party's information protection and privacy obligations.

7.2   " Collect " (including the usage of " Collected " or " Collection ") means to conduct the initial gathering and recording of data regarding Individuals, whether or not the data constitutes Personal Information.

7.3   " Company Affiliate " means each Affiliate (as such term is defined in the APSA) of the Company.

7.4   " Pioneer Affiliate " means any domestic or foreign partnership, joint venture, corporation or other form of enterprise in which Pioneer possesses (directly or indirectly) an ownership interest of 20 percent or greater (or lesser ownership if such is the maximum allowed by law) or where Pioneer has a written management agreement to manage the relevant procurement activities of the Pioneer entity.

7.5   " Individual " means a Person to whom Personal Information relates and about whom Personal Information may be Processed under this Agreement.

7.6   " Notice " means a disclosure to an Individual in connection with the Collection or Processing of Personal Information that informs the Individual regarding:

  1. The identity of the entity making decisions about the Personal Information;
  2. The types of Personal Information being Collected;
  3. The purposes for which Personal Information may be used;
  4. Any recipients (or categories of recipients) of Personal Information;
  5. Any right of the Individual to have access to Personal Information;
  6. Any right of the Individual to rectify any Personal Information which is inaccurate; and
  7. The consequences, if any, to Individual of not providing Personal Information.

7.7   " Opt-Out " means a choice given to or exercised by an Individual to decline, reject or refuse the Collection or Processing of his or her Personal Information.

7.8   " Personal Information " means any information that identifies an Individual or relates to an identifiable individual. Examples of Personal Information include, but are not limited to, name, address, telephone number, and email address.

7.9   " Process " (including the usage of " Processes ", " Processed " or " Processing ") means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, including, without limitation, any Collection, Transfer, recording, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure, transmission, dissemination, combination, blocking, erasure or destruction thereof.

7.10   " Record " means information that is inscribed on a tangible medium or is stored in an electronic or other medium and which is retrievable in perceivable form.

7.11   " Safe Harbor Program " shall mean individually and collectively the U.S.-E.U. Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework developed by the U.S. Department of Commerce in consultation with, respectively, the European Commission and the Federal Data Protection and Information Commissioner of Switzerland.

7.12   " Security Controls " means any controls that are used to regulate access to, or prevent the alteration, loss or destruction of, any Personal Information.

7.13   " Special Personal Information " means any of the following types of Personal Information: (i) social security number, taxpayer identification number, passport number, driver's license number or other government-issued identification number; or (ii) credit or debit card details or financial account number, with or without any code or password that would permit access to the account; credit history, or (iii) information on race, religion, ethnicity, sexual orientation, medical or health information, genetic or biometric information, political or philosophical beliefs, trade union membership, background check information, judicial data such as criminal records or information on other judicial or administrative proceedings.

7.14   " Transfer " (including the usage of " Transfers ", " Transferred ", " Transference " or " Transferring ") means the access to or sharing of Personal Information by electronic or other means.

[Signature page to follow.]

6


IN WITNESS WHEREOF, the parties have executed and delivered this DTA as of the Effective Date.

"PIONEER"

PIONEER HI-BRED INTERNATIONAL, INC.

 

 

By_________________________________
Authorized Signature

___________________________________
Type/Print Name of Signer

Title: ___________________________________

Effective Date: December 31, 2014

"COMPANY"

 

S&W SEED COMPANY

 

 

By_________________________________
Authorized Signature

___________________________________
Type/Print Name of Signer

Title: ___________________________________

 

[Signature Page to Data Trsnsfer Agreement]

EXHIBIT 10.15

CONFIDENTIAL
EXECUTION VERSION

ASSIGNMENT AGREEMENT OF PLANT VARIETY CERTIFICATES, PLANT BREEDERS' RIGHTS, MAINTENANCE RIGHTS AND REGISTRATION RIGHTS

This Assignment Agreement of Plant Variety Certificates, Plant Breeders' Rights, Maintenance Rights and Registration Rights (this "Agreement" ) is made as of the 31st day of December, 2014 (the "Effective Date" ), by and among Pioneer Hi-Bred International, Inc., an Iowa corporation, with a principal place of business at 7100 NW 62 nd Avenue, P.O. Box 1014, Johnston, Iowa 50131-1014, USA (" Seller "), Pioneer Overseas Corporation, an Iowa corporation, with a principal place of business at 7100 NW 62 nd Avenue, P.O. Box 1014, Johnston, Iowa 50131-1014, USA ( "POC" and, together with Seller, "Pioneer" ), and S&W Seed Company, a Nevada corporation, with a principal place of business at 25552 South Butte Avenue, Five Points, California 93624 (" Buyer "). Unless otherwise defined herein, capitalized terms shall have the meaning ascribed to them in that certain Asset Purchase and Sale Agreement dated as of December 19, 2014 by and between Seller and Buyer (the " APSA ").

WHEREAS, Pioneer owns those plant variety certificates and/or plant breeders' rights specified on Exhibit A (collectively, the "Transferred PVPs" );

WHEREAS, in connection with the Contemplated Transactions, Pioneer desires to assign to Buyer, and Buyer desires to accept from Pioneer, all of Pioneer's right, title and interest in and to the Transferred PVPs free and clear of Encumbrances (other than Permitted Encumbrances); and

WHEREAS, this Agreement is being executed and delivered by the parties pursuant to Section 5.1 of the APSA.

NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows:

ARTICLE 1. RIGHTS ASSIGNED TO ASSIGNEE

1.1 Pioneer hereby assigns, transfers and sets over unto Buyer, its successors and assigns, Pioneer's entire right, title, and interest in and to the Transferred PVPs, and all rights to sue for, to claim and to recover for all past, present and future infringement thereof; the same to be held and enjoyed by Buyer for its own use and benefit, to the full end of the term for which the Transferred PVPs are granted, as fully and entirely as the same would have been held by Pioneer had this assignment not been made. Pioneer hereby assigns, transfers and sets over unto Buyer, its successors and assigns, Pioneer's entire right, title, and interest in and to any priority rights resulting from any of the plant breeders' rights applications or plant variety certificates, and in and to the worldwide right to apply for and/or to hold and/or withdraw a grant of plant variety certificate in any Transferred PVP.

1.2 Pioneer will cooperate in executing appropriate documents reasonably requested by Buyer to complete formalities for perfecting the assignment and recording of the Transferred PVPs, including, without limitation, assignments from Pioneer substantially in the form of

1


assignment of maintenance rights and inscription rights attached hereto in Schedules A and B , upon request of Buyer. Further, Pioneer agrees that, upon request and without further compensation, Pioneer and its employees, consultants, legal representatives, and its and their successors and/or assigns, will perform any and all lawful acts, including the execution of oaths, assignments, powers of attorney, and any and all other papers, which Buyer, its successors, assigns, and/or representatives shall reasonably consider necessary for vesting, perfecting, recording, or maintaining the title of Buyer, its successors and assigns, to said Transferred PVPs. All costs associated with the foregoing, including, but not limited to, all legalization and notarization costs, shall be borne by Buyer.

1.3 To the extent that any conflict exists between the terms of the forms of assignment in Schedules A and/or B and the terms of this Agreement, the terms of this Agreement shall control.

1.4 Warranties; Limitation on Liability .

(a) Nothing in this Agreement shall be construed as:

(i) a warranty or representation by Pioneer as to the validity or scope of any Transferred PVP;

(ii) a warranty or representation that the practice rights under the Transferred PVPs are, or will be, free from infringement of any patents or other intellectual property of third parties; or

(iii) any obligation on Pioneer to furnish any Know-How.

(b) EXCEPT AS SET FORTH IN THE APSA, PIONEER MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL, EXPRESS OR IMPLIED WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT) WITH RESPECT TO THE TRANSFERRED PVPs OR THE DEVELOPMENT, USE, PRODUCTION, MANUFACTURE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS RELATED TO THE TRANSFERRED PVPs. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL PIONEER BE LIABLE TO BUYER OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS).

ARTICLE 2. DISPUTE RESOLUTION

2.1 In the event any dispute among the parties involving the Transferred PVPs cannot be solved by good faith discussions among the parties, such dispute arising out of or relating to a party's performance or non-performance under this Agreement, or the interpretations, validity or effectiveness of this Agreement, and any other provision of this Agreement, shall be resolved in accordance with Section 10.3 of the APSA.

2


2.2 This Agreement shall be governed by the substantive laws of the State of Delaware without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any arbitration agreement or award. The parties hereto do hereby irrevocably (a) submit themselves to the personal jurisdiction of such courts, (b) agree to service of such courts' process upon them with respect to any such proceeding, (c) waive any objection to venue laid therein or based upon forum non conveniens and (d) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 10.2 of the APSA (as such address may be updated from time to time in accordance with the terms of Section 10.2 of the APSA).

2.3 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.

ARTICLE 3. MISCELLANEOUS

3.1 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 and the Contemplated Transactions, including all fees and expenses of agents, representatives, counsel and accountants.

3.2 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 or other electronic means; 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
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-7066

3


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 POC :

Pioneer Overseas Corporation
Attention: President
DuPont Pioneer
7100 N.W. 62nd Avenue
P.O. Box 1014
Johnston, IA 50131-1014
Fax: (515) 535-7066

With a copy to :

Pioneer Overseas Corporation
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

3.3 If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

3.4 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 expressly provided herein, nothing expressed or referred to in this Agreement shall be construed to give any person or entity 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

4


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.

3.5 This Agreement supersedes all prior agreements between the parties with respect to its subject matter and constitutes (along with the APSA and 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 Pioneer. Any items listed, set forth, described or otherwise disclosed on or in any part of this Agreement, 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, the Schedules or the Exhibits hereto.

3.6 The headings of Articles and Sections in this Agreement and the headings in the 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.

3.7 Notwithstanding any termination of this Agreement, the provisions of Articles 2 and 3 will survive the expiration or termination of this Agreement and will remain in effect.

3.8 This Agreement may be executed in any number of counterparts (including via facsimile or portable document format (PDF)), each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

3.9 Neither the making nor the acceptance of this Agreement shall enlarge, restrict or otherwise alter or modify the terms of the APSA or constitute a waiver or release by Buyer or Seller of any liabilities, duties or obligations imposed upon any of them by the terms of the APSA. Pioneer makes no representations or warranties, express or implied, with respect to any of the Transferred PVPs, other than the representations and warranties expressly made by Pioneer in Section 1.4 and the APSA.

[Signature Page Follows]

5


CONFIDENTIAL
EXECUTION VERSION

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

PIONEER HI-BRED
INTERNATIONAL, INC.

S&W SEED COMPANY

   
   

By: _______________________________________

By: _________________________________________

Name: _____________________________________

Name:_________________________________________

Title: _____________________________________

Title: _________________________________________

PIONEER OVERSEAS CORPORATION

By: ___________________________________

Name: _________________________________

Title: ________________________________


EXHIBIT 10.16

CONFIDENTIAL
EXECUTION VERSION

ASSIGNMENT AND ASSUMPTION AGREEMENT

This Assignment and Assumption Agreement (this "Agreement" ) is made this 31st 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" ). Unless otherwise defined herein, capitalized terms shall have the meaning ascribed to them in that certain Asset Purchase and Sale Agreement dated as of December 19, 2014 by and between Seller and Buyer (the "APSA" ).

WHEREAS, pursuant to the APSA, at the Closing, Seller shall sell, assign, transfer and convey and/or shall cause its applicable Affiliates to sell, assign, transfer and convey, to Buyer and/or its applicable Affiliates, and Buyer shall purchase and accept, and/or shall cause its applicable Affiliates to purchase and accept, from Seller and/or its applicable Affiliates, free and clear of all Encumbrances (other than Permitted Encumbrances) all of Seller's and/or its applicable Affiliates' right, title and interest existing at the Closing (wherever located) in and to the Purchased Assets; and

WHEREAS, this Agreement is being executed and delivered by the parties pursuant to Section 5.1 of the APSA.

NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as follows:

  1. On the terms and subject to the conditions of the APSA, Seller hereby sells, assigns, transfers and conveys to Buyer all of Seller's right, title and interest in and to the Purchased Assets (other than (a) the Transferred Know-How, which shall be the subject of the Know-How Transfer Agreement, (b) the Transferred Patents, which shall be the subject of the Patent Assignment, (c) the Arlington Plant Site, which shall be the subject of the Warranty Deed (Arlington), (d) the Nampa Plant Site, which shall be the subject of the Warranty Deed (Nampa) and (e) the Transferred PVPs, which shall be the subject of the PVP Assignments) free and clear of Encumbrances (other than Permitted Encumbrances).
  2. On the terms and subject to the conditions of the APSA, Buyer hereby purchases and accepts from Seller all of Seller's right, title and interest in and to the Purchased Assets (other than (a) the Transferred Know-How, which shall be the subject of the Know-How Transfer Agreement, (b) the Transferred Patents, which shall be the subject of the Patent Assignment, (c) the Arlington Plant Site, which shall be the subject of the Warranty Deed (Arlington), (d) the Nampa Plant Site, which shall be the subject of the Warranty Deed (Nampa) and (e) the Transferred PVPs, which shall be the subject of the PVP Assignments) free and clear of Encumbrances (other than Permitted Encumbrances), and Buyer hereby assumes and agrees to pay, perform and discharge promptly and fully when due, all of the Assumed Liabilities.
  3. This Agreement is an instrument of transfer and conveyance contemplated by, and is executed and delivered pursuant and subject to the terms and conditions of, the APSA.

1


    Nothing in this Agreement shall, or shall be deemed to, defeat, limit, alter or impair, enhance or enlarge any right, obligation, claim or remedy created by the APSA. Seller makes no, and Buyer acknowledges and agrees that it is not relying on any, representation or warranty (express or implied) of any kind (including as to accuracy or completeness) other than the representations and warranties expressly made by Seller in Article 3 of the APSA. In the event of a conflict between any provision of the APSA and any provision of this Agreement, the provision contained in the APSA shall control.

  1. This Agreement is being executed by Seller and Buyer and shall be binding upon each of Seller and Buyer, and their respective successors and assigns, for the uses and purposes set forth herein, and shall be effective as of the date first above written.
  2. Any dispute arising out of or relating to this Agreement shall be resolved in accordance with Section 10.3 of the APSA. This Agreement shall be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles, and, except as otherwise provided in Section 10.3 of the APSA, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement. The parties do hereby irrevocably (a) submit themselves to the personal jurisdiction of such courts, (b) agree to service of such courts' process upon them with respect to any such Proceeding, (c) waive any objection to venue laid therein and (d) consent to service of process by registered mail, return receipt requested in accordance with and at the address set forth in Section 10.2 of the APSA (as such address may be updated from time to time in accordance with the terms of Section 10.2 of the APSA). This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. The parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the parties. 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
  3. 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.
  4. This Agreement, together with the APSA and the other Transaction Documents, sets forth the entire understanding of Seller and Buyer with respect to the transactions contemplated hereby and thereby and supersedes all prior agreements or understandings among the parties hereto regarding those matters.
  5. 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.

2


  1. Buyer and Seller agree to take such further actions and to execute, acknowledge and deliver all such further documents as are reasonably requested by the other party for carrying out the purposes of this Agreement.

[Signature Page Follows]

 

 

 

 

 

 

 

3


IN WITNESS WHEREOF, Buyer and Seller have executed and delivered this Agreement as of the date first above written.

 

SELLER :

 

PIONEER HI-BRED INTERNATIONAL, INC.

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

BUYER :

 

S&W SEED COMPANY

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

 

[Signature Page to Assignment and Assumption Agreement]

EXHIBIT 10.17

When recorded return to:

S&W Seed Company
25552 South Butte Avenue
Five Points, California 93624


GENERAL WARRANTY DEED

FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby acknowledged, Pioneer Hi-Bred International, Inc., an Iowa corporation (hereinafter referred to as the "Grantor"), hereby grants, bargains, sells, and conveys unto, S&W Seed Company, a Nevada corporation, whose current address is 25552 South Butte Avenue, Five Points, California 93624 (hereinafter referred to as the "Grantee"), the following described real property, located in Canyon County, Idaho, to wit (hereinafter referred to as the "Premises"):

See Exhibit A attached hereto and incorporated herein by this reference.

Together with all of Grantor's right, title and interest in and to the tenements, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and all estate, right, title, and interest in and to the Premises, as well in law as in equity.

TO HAVE AND TO HOLD the Premises with its appurtenances unto Grantee, its successors, heirs and assigns, forever.

SUBJECT TO the "Approved Exceptions", which shall mean: (a) general taxes and assessments, which are not yet due and payable, (b) matters that would be disclosed by an inspection or survey of the Premises, and (c) existing patent reservations, easements, rights of way, all other matters of record, and those exceptions listed on Exhibit B attached hereto and incorporated herein.

And Grantor does hereby covenant to and with Grantee, that Grantor is owner in fee simple of the Premises; that the Premises are free from all encumbrances except the Approved Exceptions; and that Grantor shall and will warrant and defend the quiet and peaceful possession of said Premises by Grantee, against all lawful claims whatsoever except as excluded or excepted herein.

[Signature page follows]


DATED effective as of the 31st day of December, 2014.

GRANTOR:

Pioneer Hi-Bred International, Inc., an Iowa corporation

__________________________________________
By: ___________________________________________
Its: _______________________________________________

__________________________________________
By: ___________________________________________
Its: _______________________________________________

STATE OF ________________________, County of __________________

This record was acknowledged before me this ________ day of _______________, _______, by
___________________________________________________________________________________
as _________________________________________________________________________________
of _________________________________________________________________________________.

____________________________________________
Signature of Notary Public

STATE OF ________________________, County of __________________

This record was acknowledged before me this ________ day of _______________, _______, by
___________________________________________________________________________________
as _________________________________________________________________________________
of _________________________________________________________________________________.

____________________________________________
Signature of Notary Public

GENERAL WARRANTY DEED - 2


EXHIBIT A

LEGAL DESCRIPTION

Parcel I:

The West 220 feet of the East 1022 feet of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West, Boise Meridian, Canyon County, Idaho; and

A portion of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, being more particularly described as follows:

Commencing at the Southeast corner of said Southeast quarter of the Northeast quarter of Section 16; thence

South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter a distance of 1022.00 feet to the True Point of Beginning; thence continuing

South 89°55'04" West along said South line, a distance of 30.00 feet to a point; thence

North on a line parallel to the East line of said Southeast quarter of the Northeast quarter of Section 16, a distance of 190.00 feet to a point; thence

North 89°55'04" East, along a line parallel with the South line of said Southeast quarter of the Northeast quarter, a distance of 30.00 feet; thence

South along a line parallel to the East line of said Southeast quarter of the Northeast quarter, a distance of 190.00 feet to the True Point of Beginning.

Parcel II:

A parcel of land located in the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, and is more particularly described as follows:

Commencing at the East quarter corner of said Section 16, being a P.K. Nail and the centerline intersection of Lake Shore Drive and 12th Avenue South; thence

South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter, and the centerline of Lake Shore Drive, a distance of 1022.00 feet to a P.K. Nail, being the True Point of Beginning; thence continuing

South 89°55'04" West along said South line of the Southeast quarter of the Northeast quarter and the centerline of Lake Shore Drive, a distance of 300.20 feet to the Southwest corner of said parcel, being a 5/8 inch steel pin, from whence a 1/2 inch steel pin bears

North 0°06'20" West, a distance or 33.00 feet; thence leaving said South line of the Southeast quarter of the Northeast quarter and the centerline of Lake Shore Drive

North 0°06'20" West, along the West line of said Southeast quarter of the Northeast quarter, a distance of 1324.04 feet to the Northwest corner of said parcel being a 5/8 inch steel pin, and the Northeast 1/16 corner of said Section 16; thence

North 89°55'27" East along the North line of said Southeast quarter of the Northeast quarter, a distance of 302.64 feet to the Northeast corner of said parcel, being a 1/2 inch steel pin; thence

South and parallel with the East line of said Southeast quarter of the Northeast quarter, a distance of 1324.01 feet to the True Point of Beginning.

Excepting Therefrom:

A portion of the Southeast quarter of the Northeast quarter of Section 16, Township 2 North, Range 2 West of the Boise Meridian, Canyon County, Idaho, being more particularly described as follows:

Commencing at the Southeast corner of said Southeast quarter of the Northeast quarter of Section 16; thence

South 89°55'04" West along the South line of said Southeast quarter of the Northeast quarter a distance of 1022.00 feet to the True Point of Beginning; thence continuing

South 89°55'04" West along said South line, a distance of 30.00 feet to a point; thence

EXHIBIT A TO GENERAL WARRANTY DEED - 3


EXHIBIT A (continued)

LEGAL DESCRIPTION

North on a line parallel to the East line of said Southeast quarter of the Northeast quarter of Section 16, a distance of 190.00 feet to a point; thence

North 89°55'04" East, along a line parallel with the South line of said Southeast quarter of the Northeast quarter, a distance of 30.00 feet; thence

South along a line parallel to the East line of said Southeast quarter of the Northeast quarter, a distance of 190.00 feet to the True Point of Beginning.

 

 

EXHIBIT A TO GENERAL WARRANTY DEED - 4


EXHIBIT B

PERMITTED EXCEPTIONS

1. Taxes, including any assessments collected therewith, for the year 2014 for which the first installment is paid and the second installment is due and payable on or before June 20, 2015.

2. The land described herein is located within the boundaries of Nampa-Meridian Irrigation District (208-466-7861) and is subject to any assessments levied thereby. None are due and payable.

(Affects Parcels I and II)

3. Claims, if any, against, or adverse to, Grantee's title in, or to, water rights or entitlements to use water appurtenant to, or beneficially used upon, the Premises.

 

4. An easement for the purpose shown below and rights incidental thereto as set forth in document.

Granted to: Idaho Power Company, a corporation

Purpose: A right of way and easement for the erection and continued operation, maintenance, repair, alteration, inspection and replacement of the electric transmission, distribution and telephone lines and circuits attached to poles or other supports, together with guys, crossarms and other attachments and incidental equipment thereon and appurtenances, with the right to permit the attachment of the wires and fixtures of other companies or parties

Recorded: October 27, 1966

Instrument No.: 587304

Book 51 of Miscellaneous Records at Page 25, records of Canyon County, Idaho.

(Affects Parcels I and II)

NOTE: The exact location and extent of said easement is not disclosed of record.

5. An easement for the purpose shown below and rights incidental thereto as set forth in document.

Granted to: Idaho Power Company, a corporation

Purpose: A right of way and easement for the erection and continued operation, maintenance, repair, alteration, inspection and replacement of the electric transmission, distribution and telephone lines and circuits attached to poles or other supports, together with guys, crossarms and other attachments and incidental equipment thereon and appurtenances, with the right to permit the attachment of the wires and fixtures of other companies or parties

Recorded: February 4, 1974

Instrument No.: 722431, records of Canyon County, Idaho.

(Affects Parcel I)

NOTE: The exact location and extent of said easement is not disclosed of record.

6. Record of Survey recorded April 8, 1991 as Instrument No. 9106514, records of Canyon County, Idaho.

(Affects Parcel II)

7. An easement for the purpose shown below and rights incidental thereto as set forth in document.

Granted to: Idaho Power Company, a corporation

Purpose: A permanent and perpetual easement and right of way, sufficient in width to install and maintain an underground electric power line, including the perpetual right to enter upon the real estate, at all reasonable times, to construct, maintain and repair underground power lines over, through, under and across said lands, together with the right to excavate and refill ditches and trenches for the location of said power lines, and the further right to remove trees, bushes, sod, flowers and shrubbery

Recorded: May 20, 1992

Instrument No.: 9211041, records of Canyon County, Idaho.

(Affects Parcel II)

EXHIBIT B TO GENERAL WARRANTY DEED - 5


EXHIBIT B (continued)

PERMITTED EXCEPTIONS

8. Record of Survey recorded January 31, 1996 as Instrument No. 9603453, records of Canyon County, Idaho.

(Affects Parcels I and II)

9. An easement for the purpose shown below and rights incidental thereto as set forth in document.

Granted to: Idaho Power Company, a corporation

Purpose: Right-of-way and easement for the erection and continued operation, maintenance, repair, alteration (including but not limited to, voltage or capacity upgrades and additional structures, and/or new structure locations), inspection and replacement of overhead and/or underground electrical transmissions, distribution, and communications lines and circuits attached to towers, poles, props, guys, or other supports, together with crossarms and other attachments and incidental equipment thereon

Recorded: April 8, 2008

Instrument No.: 2008019012, records of Canyon County, Idaho.

(Affects Parcel II)

10. Rights of tenants in possession, as tenants only, under prior unrecorded leases.

11. The following matters, and any rights, easements, interests or claims which may exist by reason thereof, disclosed by an ALTA/ACSM Land Title Survey made by Mason & Stanfield, Inc. on December 10, 2014, designated as Job No. SE0514:

a. Ditch crossing the northerly boundary of the subject parcels;

b. 3' Drain Ditch crossing the northerly boundary of the subject parcels;

c. 3' Concrete Ditch crossing the northerly boundary of the subject parcels;

d. Gravel Road crossing the westerly and northerly boundaries of the subject parcels;

e. 25.0' prescriptive easement for the existing road (Lake Shore Drive).

EXHIBIT B TO GENERAL WARRANTY DEED - 6


EXHIBIT 10.18

CONFIDENTIAL
EXHIBIT 1(U)

Document Number

State Bar of Wisconsin Form 21-2003

WARRANTY DEED

 

Document Name

 

THIS DEED , made between Pioneer Hi-Bred International, Inc., an Iowa corporation

("Grantor," whether one or more), and S&W Seed Company, a Nevada Corporation

("Grantee," whether one or more).

_________________________________________________,

 

Grantor for a valuable consideration, conveys to Grantee the following described real estate, together with the rents, profits, fixtures and other appurtenant interests, in Columbia County, State of Wisconsin ("Property") (if more space is needed, please attach addendum):

Lands described In Columbia County Certified Survey Map No. 884, as recorded in Volume 4 of Surveys, on page 104, as Document No. 441386, being located In the North East 114 of the North East 114 of Section 22, Township 10 North, Range 9 East, Town of Arlington, Columbia County, Wisconsin.

Lot 1 of Certified Survey Map No. 3122, as recorded in Volume 20 of Certified Survey Maps, page 118, Document No. 593525, being a Survey in the North East 1/4 of the North East 1/4 of Section 22, Township 10 North, Range 9 East, Town of Arlington, Columbia County, Wisconsin.

 

Recording Area

Name and Return Address

Matthew K. Szot

S&W Seed Company

7013 Catttail Place

Carlsbad, CA 92011

 

11002-392.01

11002-392.A

Parcel Identification Number (PIN)

 

This is not homestead property.

(is) (is not)

 

 

Grantor warrants that the title to the Property is good, indefeasible, in fee simple and free and clear of encumbrances except:

 

Dated

 

, 2014.

 

Pioneer Hi-Bred International, Inc., an Iowa corporation

       
       
 

(SEAL)

 

By:

 

(SEAL)

         
 

(SEAL)

   

(SEAL)

         
         
         

AUTHENTICATION

 

ACKNOWLEDGMENT

Signature(s)

   

STATE OF

IOWA

)

         

) ss.

authenticated on

 

.

 

COUNTY

)

         
   

Personally came before me on

 

*

   

the above-named

 

TITLE: MEMBER STATE BAR OF WISCONSIN

   
 

(If not,

   

to me known to be the person(s) who executed the foregoing

 

authorized by Wis. Stat. 706.06)

 

instrument and acknowledged the same.

         

THIS INSTRUMENT DRAFTED BY:

   

Gonzalez Saggio & Harlan LLP

 

*

 

By Robert A. Dudek

 

Notary Public, State of

 
   

My commission (is permanent) (expires:

 

)


EXHIBIT A TO WARRANTY DEED
CONTINUATION OF EXCEPTIONS

Municipal and zoning ordinances and agreements entered under them, recorded easements for the distribution of utility and municipal services, recorded building and use restrictions and covenants, any encroachment, encumbrance, violation, or adverse circumstance affecting the title that would be disclosed by an accurate and complete land survey of the Property, easements or claims of easements not shown by the public records, any claim of adverse possession or prescriptive easement, general taxes levied in the year of closing and the items set forth in the Schedule of Permitted Encumbrances attached hereto as Exhibit B.

 

 

 

 

 


EXHIBIT B TO WARRANTY DEED
SCHEDULE OF PERMITTED ENCUMBRANCES

  1. Madison Gas & Electric Transmission Line, Right of Way Lines, and matters as indicated on Columbia County Certified Survey Map No. 884, as recorded in the Office of the Register of Deeds in and for Columbia County, Wisconsin, on April 23, 1985 at 1:15 P.M., in Volume 4 of Surveys, on page 104, as Document No. 441386.
  2. Instrument in the Matter of the Condemnation by Madison Gas and Electric Company of Certain Lands in said County for Electric Transmission Line Purposes, as filed in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, on September 6, 1974 at 4:00 P.M., in Volume 9 of Lis Pendens, on page 17, as Document No. 369337.
  3. And Supplemental Affidavit to Lis Pendens, In the Matter of the Condemnation by Madison Gas and Electric Company of Certain Lands in said County for Electric Transmission Line Purpose, as filed in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, in Volume 9 of Lis Pendens, on page 363, as Document No. 394349.

  4. Electric Line Easement to Madison Gas and Electric Company, as recorded in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, on August 4, 1969 at 8:00 A.M., in Volume 70 of Records, on page 243, as Document No. 340225.
  5. Drainage rights and rights-of-way by reason of any drainage ditches, feeders, laterals, and underground drain tile or pipes that may be located on the subject premises.
  6. M G & E Transmission Line Easement, Building Setback Line, Right of Way Lines, Note: Lot 1 is to be sold to Pioneer Hi-Bred International, Inc. as an Addition to Certified Survey Map No.. 884, and matters as indicated on Columbia County Certified Survey Map No. 3122, as recorded in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, on October 26, 1998 at 8:00 A.M., in Volume 20 of Certified Survey Maps, on page 118, as Document No. 593525.
  7. Land Use Amendment to Easement by Madison Gas and Electric Company, and Pioneer Hi-Bred International, Inc., as recorded in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, on November 3, 1999 at 1:30 P.M., as Document No. 613558.
  8. Easement Supplement by and between Pioneer Hi-Bred International, Inc., and American Transmission Company, LLC, as recorded in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, on October 14, 2004 at 8:00 A.M., as Document No. 718717.
  9. POWTS Maintenance Agreement by Pioneer Seeds Hi-Bred International, Inc. as recorded in the Office of the Register of Deeds, in and for Columbia County, Wisconsin, on August 5, 2008 at 2:55 P.M., as Document No. 784400.

  1. Rights of Lycol, LLC and Joel Mcllrath as tenants in possession including any rights to tenants fixtures owned by such tenants located on the demised premises and any liens on such tenants fixtures, and all parties having a lien on or claiming by, through or under the lessee, which parties and liens are not separately shown herein.
  2. Rights of utility companies to maintain the overhead wire set forth on the Plat of Survey prepared by R.A. Smith National Inc. under date of September 19, 2014 (Affects Northeasterly corner of Certified Survey Map 884).

 

 

 


EXHIBIT 10.19

** Portions of this agreement have been omitted and filed separately with the SEC
pursuant to a confidential treatment request

CONFIDENTIAL
EXHIBIT 1(S)

ASSET PURCHASE AND SALE AGREEMENT

by and between

[PIONEER HI-BRED INTERNATIONAL, INC.] 1

and

[S&W SEED COMPANY] 2

Dated: [___________]

 

 

 

_____________________
1 Note: To be confirmed at time of execution.
2 Note: To be confirmed at time of execution.


TABLE OF CONTENTS

[NTD: TABLE OF CONTENTS TO BE UPDATED]

 

ARTICLE 1   DEFINITIONS    
         
ARTICLE 2   SALE OF PURCHASED ASSETS; LIABILITIES; PURCHASE PRICE; CLOSING    
         
2.1   PURCHASED ASSETS; LIABILITIES    
2.2   PURCHASE PRICE    
2.3   CLOSING    
2.4   BUYER'S DELIVERIES    
2.5   SELLER'S DELIVERIES    
         
ARTICLE 3   REPRESENTATIONS AND WARRANTIES OF SELLER    
         
3.1   ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS    
3.2   TITLE    
3.3   BROKERS OR FINDERS    
3.4   LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS    
3.5   TRANSFERRED CONTRACTS    
3.6   TRANSFERRED GERMPLASM    
         
ARTICLE 4   REPRESENTATIONS AND WARRANTIES OF BUYER    
         
4.1   ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS    
4.2   PAYMENTS OF BUYER    
4.3   BROKERS OR FINDERS    
4.4   LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS    
4.5   INSPECTIONS; NO OTHER REPRESENTATIONS    
         
ARTICLE 5   COVENANTS    
         
5.1   ACCESS AND INVESTIGATION    
5.2   CONFIDENTIALITY    
5.3   PUBLICITY    
5.4   TRANSFER TAXES; PRO-RATIONS    
5.5   CERTAIN DOCUMENTS    
5.6   NON-ASSIGNABLE ASSETS    
5.7   DELIVERY OF CERTAIN PURCHASED ASSETS    
         
ARTICLE 6   INDEMNIFICATION; REMEDIES    
         
6.1   INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER    
6.2   INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER    
6.3   SURVIVAL; TIME LIMITATIONS    
6.4   LIMITATIONS ON DAMAGES    
6.5   PROCEDURE FOR INDEMNIFICATION-THIRD-PARTY CLAIMS    
6.6   PROCEDURE FOR INDEMNIFICATION-OTHER CLAIMS    
6.7   NET RECOVERY; MITIGATION; TREATMENT; ETC    
         

TABLE OF CONTENTS
(CONTINUED)

 

ARTICLE 7   GENERAL PROVISIONS    
         
7.1   EXPENSES    
7.2   NOTICES    
7.3   DISPUTE RESOLUTION; GOVERNING LAW; JURISDICTION    
7.4   EQUITABLE RELIEF    
7.5   NO IMPLIED WAIVERS; NO JURY TRIAL    
7.6   ENTIRE AGREEMENT AND MODIFICATION    
7.7   ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS    
7.8   SEVERABILITY    
7.9   SECTION HEADINGS; CONSTRUCTION    
7.1   TIME OF THE ESSENCE    
7.11   FURTHER ASSURANCES    
7.12   PERFORMANCE BY AFFILIATES; BULK SALES LAWS    
7.13   COUNTERPARTS    

 

 

 


ASSET PURCHASE AND SALE AGREEMENT

This Asset Purchase and Sale Agreement is made this [________] day of [________], 201[ ] 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 :

"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.

"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) .


"Basket" - is defined in Section 6.4(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 Indemnified Persons" - is defined in Section 6.1 .

"Buyer's Disclosure Schedules" - means the disclosure schedules of Buyer attached hereto and made a part hereof.

"Closing" - is defined in Section 2.3 .

"Closing Date" - is defined in Section 2.3 .

"Code" - means the Internal Revenue Code of 1986, as amended from time to time.

"Confidential Information" - is defined in Section 5.2(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 7.3(b) .

"Damages" - is defined in Section 6.1 .

"Distribution Agreement" - means the Distribution Agreement, dated as of December 31, 2014, by and between Seller and Buyer.

"Encumbrance" - means any lien, pledge, security interest, right of first refusal or other like restriction.

"Excluded Assets" - is defined in Section 2.1(b) .

2


"Excluded Liabilities" - is defined in Section 2.1(d) .

"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.

"Indemnified Person" - means a Buyer Indemnified Person or a Seller Indemnified Person, as the case may be.

"Indemnifying Person" - is defined in Section 6.5(a) .

"Know-How" - means unpatented inventions, trade secrets, technical information or formulae.

"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.

"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.

" 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.

"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

3


Governmental Bodies for maintenance of such patents, and/or (d) 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.

"Production Agreement" - means the Contract Alfalfa Production Services Agreement, dated as of December 31, 2014, by and between Seller and Buyer.

"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).

"Products" - means, collectively, the products listed on Exhibit 1(B) .

"Purchase Price" - means Seven Million United States Dollars ($7,000,000).

"Purchased Assets" - is defined in Section 2.1(a) .

"Seller" - is defined in the preamble.

"Seller Indemnified Persons" - is defined in Section 6.2 .

"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) [**] 3 ; (b) [**] 4 ; (c) [**] 5 ; (d) [**] 6 ; and (e) solely with respect to tax-related matters (including Section 3.12 ), [**] 7 . [ NTD : To be updated prior to signing to reflect any changes in personnel. ]

"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 6.5(a) .

_____________________
3 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
4 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
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.

4


"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.

"Transaction Documents" - means this Agreement, the Assignment and Assumption Agreement, 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)(ii) .

"Transferred Germplasm" - is defined in Section 2.1(a)(iii) .

"Transferred Records" - is defined in Section 2.1(a)(i) .

ARTICLE 2. SALE OF PURCHASED ASSETS; LIABILITIES; PURCHASE PRICE; CLOSING

2.1   PURCHASED ASSETS; LIABILITIES

  1. Purchased Assets . At the Closing, and upon the terms and subject to the conditions of this Agreement and the other Transaction Documents, Seller shall, and/or shall cause its applicable Affiliates to, sell and assign, transfer and convey to Buyer and/or its applicable Affiliates, and Buyer shall, and/or shall cause its applicable Affiliates to, purchase and accept from Seller and/or its applicable Affiliates, free and clear of all Encumbrances (other than Permitted Encumbrances) all of Seller's and/or its applicable Affiliates' right, title and interest existing at the Closing (wherever located) in and to the following assets, but excluding the Excluded Assets (collectively, the "Purchased Assets" ):
    1. the records expressly identified and set forth on Exhibit 2.1(a)(i) (collectively, the "Transferred Records" );
    2. subject to the receipt of all required consents of applicable third parties, the contracts expressly identified and set forth on Exhibit 2.1(a)(ii) (collectively, the "Transferred Contracts" );
    3. the germplasm expressly identified and set forth on Exhibit 2.1(a)(iii) (collectively, the "Transferred Germplasm" );
    4. the inventories of parent and research alfalfa seed identified and set forth on Exhibit 2.1(a)(iv) ; and
    5. all goodwill to the extent related to the Purchased Assets.

  2. Excluded Assets . Notwithstanding anything to the contrary contained herein, the Purchased Assets shall not include any of the following (the "Excluded Assets" ):
    1. any cash, cash equivalents or accounts and notes receivable;

5


    1. any performance and other bonds, security and other deposits, advance or prepaid payments, prepaid expenses, prepaid credits and deferred charges (including any of the same arising from or relating to the sale of Products by Seller or any of its Affiliates);
    2. except as expressly identified as a Purchased Asset in Section 2.1(a) , any rights related to any intellectual property owned, licensed or used by Seller or its Affiliates, including any Know-How, trademarks, patents or plant variety protection certificates;
    3. except as expressly identified as a Purchased Asset in Section 2.1(a) , any rights related to any germplasm owned, licensed or used by Seller or its Affiliates;
    4. any asset, right, title, interest or property unless such asset, right, title, interest or property is expressly identified in Section 2.1(a) as a Purchased Asset; or
    5. any rights that accrue or will accrue to Seller or any of its Affiliates under this Agreement or any other Transaction Document.

  1. Assumed Liabilities . Effective as of the Closing, Buyer shall assume, and/or shall become responsible for, as applicable, and agrees to pay, discharge or perform, as appropriate, when due the following Liabilities (such Liabilities collectively, the "Assumed Liabilities" ):
    1. any Liability arising out of or relating to the Purchased Assets to the extent that any such Liability is for, relates to and arises during time periods after the Closing Date (including any such Liability arising out of or relating to any Third-Party Claim), including, without limitation, all amounts payable pursuant to any grower contracts included as Transferred Contracts;
    2. except as expressly provided in the Distribution Agreement or the Production Agreement, any Liability arising out of or relating to the sale of Products by or on behalf of Buyer or its Affiliates (including, without limitation, sales of Products by or through Buyer's or its Affiliates' distributors, resellers or agents (other than (A) Seller and (B) distributors, resellers or agents acting on behalf of Seller)) to the extent that any such Liability is for, relates to and arises during time periods after the Closing Date (including any and all storage and warehouse costs associated with Products incurred and related to time periods after the Closing Date); and
    3. any Tax Liability assessed against or with respect to (A) the Purchased Assets at any time after the Closing Date, or (B) except as expressly provided in the Distribution Agreement, the Production Agreement, the sale of Products by or on behalf of Buyer or its Affiliate (including, without limitation, sales of Products by or through Buyer's or its Affiliates' distributors, resellers or agents (other than (I) Seller and (II) distributors, resellers or agents acting on behalf of Seller)) at any time after the Closing Date.

  2. Excluded Liabilities . Buyer shall not assume or become responsible for the following Liabilities (such Liabilities collectively, the "Excluded Liabilities" ):

6


    1. any Liability arising out of or relating to the Purchased Assets to the extent that any such Liability is for, relates to and arises during time periods on or prior to the Closing Date (including any such Liability arising out of or relating to any Third-Party Claim); and
    2. except as expressly provided in the Production Agreement, any Liability arising out of or relating to Seller's and/or its Affiliates' sale of Products to the extent that any such Liability is for, relates to and arises during time periods on or prior to the Closing Date;
    3. any Tax Liability assessed against or with respect to the Purchased Assets or Seller's and/or its Affiliates' sale of Products to the extent that any such Liability is for, relates to and arises during time periods on or prior to the Closing Date.

2.2   PURCHASE PRICE

  1. In consideration for Seller's and/or its Affiliates' sale, assignment and delivery of the Purchased Assets to Buyer and/or its Affiliates, and Seller's and its Affiliates' performance of their respective obligations contained in this Agreement, at the Closing, Buyer shall pay, or cause to be paid, by wire transfer of immediately available funds to an account designated by Seller, an aggregate amount equal to the Purchase Price.
  2. As soon as practicable after the Closing Date, Seller and Buyer shall, in good faith, attempt to agree on an allocation of the Purchase Price among the Purchased Assets and the covenants contained herein and in the other Transaction Documents in accordance with Section 1060 of the Code and the U.S. Treasury Regulations promulgated thereunder; provided , however , that if Seller and Buyer are unable to mutually agree on such allocation on or before one hundred twenty (120) days after the Closing Date, it is understood and agreed that Seller and Buyer may each allocate the Purchase Price in the manner each deems to be appropriate without binding effect on the other. If the parties agree as to the allocation of the Purchase Price, the parties shall report for all Tax purposes the allocation of the Purchase Price in a manner consistent with such allocation and shall take no Tax position inconsistent or contrary thereto.

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 the date of this Agreement (the "Closing Date" ).

2.4   BUYER'S DELIVERIES

At Closing, Buyer shall deliver to Seller:

  1. an amount equal to the Purchase Price, by wire transfer of immediately available funds to the account(s) designated by Seller;

7


  1. a copy of the resolutions of the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the consummation of the Contemplated Transactions by Buyer and a certificate of its secretary or assistant secretary dated as of the Closing Date certifying that such resolutions were duly adopted and are in full force and effect;
  2. two (2) duly executed counterparts to each of the Transaction Documents required to be executed and delivered by Buyer and/or its Affiliates on or prior to the Closing Date; and
  3. such other instruments of conveyance and transfer, in form reasonably satisfactory to Seller and its counsel, as shall be necessary and effective to transfer, assign, and license to, and vest in, Buyer or its Affiliates, all right, title and interest in and to the Purchased Assets as set forth herein, free and clear of all Encumbrances (other than Permitted Encumbrances).

2.5   SELLER'S DELIVERIES

At Closing, Seller shall deliver, or cause to be delivered, to Buyer:

  1. except as set forth in this Agreement, the Purchased Assets;
  2. two (2) duly executed counterparts to each of the Transaction Documents required to be executed and delivered by Seller and/or its Affiliates on or prior to the Closing Date; and
  3. such other instruments of conveyance and transfer, in form reasonably satisfactory to Buyer and its counsel, as shall be necessary and effective to transfer, assign, and license to, and vest in, Buyer or its Affiliates, all right, title and interest in and to the Purchased Assets as set forth herein, free and clear of all Encumbrances (other than Permitted Encumbrances).

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 as of the date of this Agreement, as follows:

3.1   ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS

  1. Each of Seller and each Affiliate of Seller (i) that owns any of the Purchased Assets or (ii) that is a party to any Transaction Document, is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Seller and its applicable Affiliates are duly qualified to do business and in good standing as a foreign corporation in each jurisdiction where the ownership or operation of the Purchased Assets requires such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

8


  1. Each of Seller and each Affiliate of Seller (i) that owns any of the Purchased Assets or (ii) that is a party to any Transaction Document, has the requisite power and authority to (x) own the Purchased Assets owned by it, (y) execute and deliver the Transaction Documents to which it is or will be a party and (z) consummate the Contemplated Transactions required to be consummated by it. Seller has duly executed and delivered this Agreement, and this Agreement, together with the other Transaction Documents, shall constitute the legal, valid and binding obligation of Seller and its relevant Affiliates, as the case may be, enforceable against Seller and its relevant Affiliates, as the case may be, in 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.
  2. Except as set forth in Schedule 3.1(c) of Seller's Disclosure Schedules , neither Seller's nor any of its Affiliates' execution, delivery or performance of the Transaction Documents to which it is party, nor Seller's or its applicable Affiliates' consummation of the Contemplated Transactions, will:
    1. result in a violation of or be in conflict with any of the constituent documents of Seller or its Affiliates or any resolution currently in effect adopted by the board of directors or management organization of Seller or its Affiliates;
    2. result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which Seller 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 a Material Adverse Effect or have an adverse effect on the ability of Seller and its Affiliates to consummate the Contemplated Transactions in any material respect;
    3. violate any Legal Requirement or Order applicable to Seller, its Affiliates or any of their respective properties or assets , excluding from the foregoing in this clause (iii) such violations, breaches or defaults which would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect or have an adverse effect on the ability of Seller and its Affiliates to consummate the Contemplated Transactions in any material respect; or
    4. give any Governmental Body the right to challenge any of the Contemplated Transactions.

  3. Except as set forth in Schedule 3.1(d) of Seller's Disclosure Schedules , none of Seller or its Affiliates is required to give any notice to, or obtain any Consent from, any (i) Governmental Body, (ii) Person pursuant to any written contract or agreement or (iii) management organization or stockholders of Seller or its Affiliates, as applicable, in connection with the execution and delivery of the Transaction Documents or the consummation of the Contemplated Transactions.

9


3.2   TITLE

Except as set forth in Schedule 3.2 of Seller's Disclosure Schedules :

  1. Seller and/or its applicable Affiliate(s) are the record and beneficial owners of, and have good and marketable title to, the Purchased Assets, free and clear of Encumbrances, except for Permitted Encumbrances;
  2. each of Seller and/or its applicable Affiliates has the right, power and authority to sell, assign and deliver the Purchased Assets owned by it to Buyer or its Affiliates free and clear of Encumbrances, other than Permitted Encumbrances; and
  3. each of Seller and/or its applicable Affiliates has the right, power and authority to lease or license assets leased or licensed under the Transaction Documents.

3.3   BROKERS OR FINDERS

Except as set forth in Schedule 3.3 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.

3.4   LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS

  1. Except as set forth in Schedule 3.4(a) of Seller's Disclosure Schedules , there are no Proceedings pending or, to Seller's Knowledge, Threatened, against Seller or its Affiliates, (i) involving the Purchased Assets or the Products, or (ii) that question the validity of this Agreement or the Contemplated Transactions or any action taken or to be taken by Seller or its Affiliates in connection with this Agreement or the Contemplated Transactions.
  2. Except as set forth in Schedule 3.4(b) of Seller's Disclosure Schedules , none of Seller or its Affiliates is in violation of any material Legal Requirement relating to the Purchased Assets or the Products.

3.5   TRANSFERRED CONTRACTS

Except as set forth in Schedule 3.5 of Seller's Disclosure Schedules or as indicated on Exhibit 2.1(a)(ii) , 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.

10


3.6   TRANSFERRED GERMPLASM

Except as set forth in Schedule 3.6 of Seller's Disclosure Schedules :

  1. Seller has the exclusive right to bring a claim or suit against a third party for infringement or misappropriation of the Transferred Germplasm. Seller has not transferred ownership of, or agreed to transfer ownership of, or permitted any Person to, retain, any exclusive rights in, or provided joint ownership of, any Transferred Germplasm to any third party. To Seller's Knowledge, there has not been and there is no unauthorized use, unauthorized disclosure, infringement or misappropriation of any Transferred Germplasm by any third party.
  2. Neither Seller nor any of its Affiliates has granted any right or license, to any third party under the Transferred Germplasm.
  3. None of Seller or any of its Affiliates has brought any Proceeding against any third party for infringement or misappropriation of any Transferred Germplasm. The Products, including the design, development, use, sale, provision, offer to sell and distribution of any Products, is not infringing, misappropriating or violating the intellectual property rights of any third party. No written claim or demand of any Person has been made nor is there any Proceeding that is pending or Threatened that challenges the rights of Seller or its Affiliates in respect of the Transferred Germplasm and none of the Transferred Germplasm is subject to any outstanding Order or stipulation by or with any Governmental Body. There are no forbearances to sue, consents, settlement agreements, judgments, orders or similar obligations that do or may (i) restrict the rights of Seller to use, transfer, license or enforce any of the Transferred Germplasm, or (ii) grant any third party any right with respect to any Transferred Germplasm.

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 as of the date of this Agreement, as follows:

4.1   ORGANIZATION; AUTHORITY; NO CONFLICT; CONSENTS

  1. Each of Buyer and each Affiliate of Buyer (i) that will purchase from Seller or its Affiliates any of the Purchased Assets or (ii) that is a party to any Transaction Document, is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.
  2. Each of Buyer and each Affiliate of Buyer (i) that will purchase from Seller or its Affiliates any of the Purchased Assets or (ii) that is a party to any Transaction Document, has the requisite power and authority to (x) own the Purchased Assets to be licensed or purchased by it, (y) execute and deliver the Transaction Documents to which it is a party and (z) consummate the Contemplated Transactions to be consummated by it. Buyer and its applicable Affiliates have duly executed and delivered this Agreement, and this Agreement, together with the other Transaction Documents, constitutes the legal, valid and binding obligation of Buyer and its applicable Affiliates, enforceable against Buyer and its applicable Affiliates in accordance with its terms, subject to applicable bankruptcy, insolvency and other

11


    similar laws affecting the enforceability of creditors' rights generally, general equitable principles and court discretion in granting equitable remedies.

  1. Except as set forth in Schedule 4.1(c) of Buyer's Disclosure Schedules , none of Buyer's or any of its Affiliates' execution, delivery or performance of the Transaction Documents to which it is a party, nor Buyer's or its applicable Affiliate's consummation of the Contemplated Transactions, will:
    1. result in a violation of any of the constituent documents of Buyer or its Affiliates or any resolution currently in effect adopted by the board of directors or management organization of Buyer or its Affiliates;
    2. result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, 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;
    3. violate any Legal Requirement or Order applicable to Buyer, its Affiliates or any of their respective properties or assets excluding from the foregoing in this clause (iii) 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; or
    4. give any Governmental Body the right to challenge any of the Contemplated Transactions.

  2. Except as set forth in Schedule 4.1(d) of Buyer's Disclosure Schedules , none of Buyer or its Affiliates is required to give any notice to, or obtain any Consent from, any (i) Governmental Body, (ii) Person pursuant to any written contract or agreement or (iii) management organization, stockholders or members of Buyer or its Affiliates, in connection with the Contemplated Transactions.

4.2   PAYMENTS OF BUYER

Buyer or its Affiliates have, or will have at the time of the applicable payment, sufficient cash on hand or available borrowing capacity under its existing lines of credit to pay the Purchase Price and the other payments required to be paid by Buyer or its Affiliates under this Agreement and the other Transaction Documents, as provided herein and therein.

12


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   LITIGATION; COMPLIANCE WITH LEGAL REQUIREMENTS

  1. There are no Proceedings pending or, to Buyer's knowledge, Threatened, against Buyer or any of its Affiliates, that question the validity of this Agreement or the Contemplated Transactions or any action taken or to be taken by Buyer or its Affiliates in connection with this Agreement or the Contemplated Transactions.
  2. None of Buyer or any of its Affiliates is in material violation of any Legal Requirement which violations, individually or in the aggregate, would have a material adverse effect on Buyer's or its Affiliates' ability to perform its obligations under this Agreement or consummate the Contemplated Transactions.

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

13


(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 ).

ARTICLE 5. COVENANTS

5.1   ACCESS AND INVESTIGATION

(a) After the Closing, Buyer shall, and shall cause its Affiliates and their respective employees and agents to, subject to any Legal Requirements and any limitations that are reasonably required to preserve any applicable attorney-client privilege or legal or contractual third-party confidentiality obligations, (i) afford Seller and its Affiliates and their respective employees and agents reasonable access, during normal business hours and upon reasonable prior notice, to the Purchased Assets and Buyer's and its Affiliates' properties, contracts, books and records and other documents and data and (ii) make Buyer's and its Affiliates' employees reasonably available to Seller and its Affiliates, in each case, to the extent reasonably requested by Seller in connection with (A) any item for which indemnification is being sought pursuant to this Agreement or any other Transaction Document, (B) any good faith effort of Seller or any of its Affiliates to enforce any of its rights under this Agreement or any other Transaction Document, (C) any inquiry directed to Seller or its Affiliates from any Governmental Body, or any response or submission by Seller or its Affiliates to any Governmental Body, with respect to (I) the Products, (II) the Purchased Assets, or (III) this Agreement or any other Transaction Document or (D) any Proceeding brought by or against Seller or its Affiliates with respect to (I) the Products, (II) the Purchased Assets, or (III) this Agreement or any other Transaction Document.

(b) After the Closing, Seller shall, and shall cause its Affiliates and their respective employees and agents to, subject to any Legal Requirements and any limitations that are reasonably required to preserve any applicable attorney-client privilege or legal or contractual third-party confidentiality obligations, (i) afford Buyer and its Affiliates and their respective employees and agents reasonable access, during normal business hours and upon reasonable prior notice, to Seller's and its Affiliates' properties, contracts, books and records and other documents and data and (ii) make Seller's and its Affiliates' employees reasonably available to Buyer and its Affiliates, in each case, to the extent reasonably requested by Buyer in connection with (A) any item for which indemnification is being sought pursuant to this Agreement or any other Transaction Document, (B) any good faith effort of Buyer or any of its Affiliates to enforce any of its rights under this Agreement or any other Transaction Document, (C) any inquiry directed to Buyer or its Affiliates from any Governmental Body, or any response or submission by Buyer or its Affiliates to any Governmental Body, with respect to (I) the Products, (II) the Purchased Assets, or (III) this Agreement or any other Transaction Document or (D) any Proceeding brought by or against Buyer or its Affiliates with respect to (I) the Products, (II) the Purchased Assets, or (III) this Agreement or any other Transaction Document.

14


5.2   CONFIDENTIALITY

  1. For purposes of this Agreement, "Confidential Information" means this Agreement, the other Transaction Documents, and the Schedules and Exhibits hereto and thereto, and any information disclosed by one party or its Affiliates or their representatives to the other party or its Affiliates or their representatives in connection with the Contemplated Transactions and identified in writing as "confidential" or similar notation. Except as otherwise permitted by this Agreement or the other Transaction Documents, a party shall not, and shall cause its Affiliates and their respective employees, consultants, agents and attorneys not to, disclose the Confidential Information of the disclosing party or its Affiliates or their representatives to any third party or use the Confidential Information except for purposes of this Agreement, the other Transaction Documents and the Contemplated Transactions without the prior written permission of the disclosing party for a period of five (5) years after the date of this Agreement; provided , that the foregoing obligations of confidentiality and restricted use shall not extend to information that is:
    1. already known at the time of its receipt by the receiving party, as shown by its prior written records; provided , however , that this exception does not apply to Seller with respect to the Purchased Assets;
    2. properly in the public domain through no fault of the receiving party;
    3. disclosed to the receiving party by a third party who may lawfully do so; or
    4. independently developed by or for the receiving party without use of the disclosing party's Confidential Information.

  2. Notwithstanding Section 5.2(a) , a receiving party may disclose Confidential Information of the disclosing party required to be disclosed by applicable Legal Requirements or the rules or regulations of any U.S. or foreign securities exchange (if not subject to protection as confidential business information or otherwise protected by statute or common law privilege against disclosure); provided , however , that prior to any such disclosure, the receiving party shall use commercially reasonable efforts to (i) give the other party written notice of such requirement prior to any such disclosure and (ii) allow the other party reasonable time to take such steps as to limit such disclosure. The parties shall cooperate with one another in the good faith making or assertion of any available defense or privilege relating to the disclosure of the Confidential Information.
  3. Notwithstanding the foregoing, (i) a receiving party may disclose Confidential Information to its Affiliates, and their respective officers, directors, employees, consultants, agents and attorneys having a need to know for the purposes of consummating the Contemplated Transactions and who are subject to a confidentiality agreement or obligation at least as strict as this Section 5.2 and (ii) nothing contained in this Section 5.2 or elsewhere in this Agreement shall prevent or limit Seller or its Affiliates from disclosing information regarding the existence of this Agreement and the Contemplated Transactions (but not the terms and

15


    conditions hereof or thereof) to third parties to the extent necessary or desired in connection with the transfer or assignment of the Purchased Assets (including the Transferred Contracts) or to otherwise consummate the Contemplated Transactions as contemplated in this Agreement and/or the other Transaction Documents.

  1. Notwithstanding anything to the contrary contained in this Section 5.2 , each party agrees that it shall, and shall cause its Affiliates and their respective officers, directors, employees, consultants, agents and attorneys to, (i) take reasonable measures to protect the secrecy, and avoid disclosure, except as expressly permitted by this Section 5.2 , and unauthorized use, of the Confidential Information of the other party and its Affiliates and (ii) with respect to the Confidential Information of the other party and its Affiliates, take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care.
  2. Notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document, Seller or its applicable Affiliates may retain copies of any books, records, contracts, agreements or any other documents or materials transferred to Buyer for legal and regulatory compliance purposes only or for purposes of satisfying any of its obligations under the Transaction Documents.

5.3   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.

5.4   TRANSFER TAXES; PRO-RATIONS

  1. All transfer, documentary, stamp, sales, use, value added, goods and services, registration and other Taxes and related fees (including any penalties, interest and additions to Tax) incurred in connection with this Agreement, any other Transaction Document and/or the Contemplated Transactions shall be borne by either Buyer or Seller (or their respective Affiliates) as imposed on the applicable party in accordance with any applicable Legal Requirement. Seller and Buyer shall, and shall cause their respective Affiliates to, cooperate in a timely manner in making all such filings, returns, reports and forms as may be required to comply with the provisions of all Legal Requirements with respect to such Taxes. Such cooperation shall include the retention (subject to each party's records retention policies and applicable law) and (upon the other party's request) the provision of records and information that are relevant to any such tax return or audit, litigation or other proceeding with respect to Taxes related to the Purchased Assets.
  2. Buyer will not deduct or withhold any amounts for Taxes from the Purchase Price.

16


5.5   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.

5.6   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 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 5.6 , Buyer acknowledges and agrees that Seller and its Affiliates shall not have any Liability whatsoever (including any Liability under Article 6 ) to Buyer or any of its Affiliates arising out of or relating to the failure to obtain such third-party Consent.

5.7   DELIVERY OF CERTAIN PURCHASED ASSETS

On the Closing Date, Seller shall, or shall cause its Affiliates to, send to Buyer a hard copy or an electronic copy of the documents comprising the Transferred Contracts and the Transferred Records, provided , that, on the Closing Date or the next succeeding Business Day, Seller may provide some or all of the such documents via other electronic means, including by

17


providing a link to a server or FTP site containing such documents, which documents shall be available for download for a period of not less than thirty (30) days following the Closing, or by delivering such documents to an internet drop-box provided by Buyer.

ARTICLE 6. INDEMNIFICATION; REMEDIES

6.1   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 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.

6.2   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.

6.3   SURVIVAL; TIME LIMITATIONS

All representations and warranties of Seller and Buyer in this Agreement and the indemnification obligations under Section 6.1(a) and 6.2(a) shall survive the Closing and terminate and expire on the date that is eighteen (18) months after the Closing, provided , however , that the representations and warranties in Sections 3.1 , 3.2 , 4.1 , 4.2 and 4.4 (and indemnification obligations under Section 6.1(a) and 6.2(a) with respect thereto) shall survive indefinitely; and provided , further , that if written notice of any claim for indemnification under Section 6.1(a) or 6.2(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 6.1(a) , 6.2(a) , as applicable, shall survive until such claim is finally resolved in accordance with the terms of this Agreement. The indemnification obligations under Sections 6.1(b) , 6.1(c) , 6.2(b) , 6.2(c) , and Section 7.12 , as applicable, shall each survive the Closing until the expiration of the applicable statute of limitations (giving effect to any waiver, mitigation or extension thereof) with respect to the indemnification claim being asserted; provided , however , that if written notice of any claim for indemnification under Sections 6.1(b) , 6.1(c) , 6.2(b) , 6.2(c) , or Section 7.12 , as applicable, has been given within the applicable survival period, then, solely with respect to the subject matter of

18


such indemnification claim, the indemnification obligations under Sections 6.1(b) , 6.1(c) , 6.2(b) , 6.2(c) , and Section 7.12 , 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.

6.4   LIMITATIONS ON DAMAGES

  1. Seller shall not be liable under Section 6.1(a), for an indemnification claim with respect to an individual item or occurrence unless and until the amount of all Damages claimed thereunder exceeds, in the aggregate, Thirty-Five Thousand United States Dollars ($35,000) (the "Basket" ), and then only for the amount by which such Damages exceed the Basket. Notwithstanding anything contained in this Agreement to the contrary, Seller's total and aggregate liability for all claims under Section 6.1(a) shall in no event exceed an amount equal to Seven Hundred Thousand United States Dollars ($700,000); provided , however , in no event shall the limitations in this Section 6.4(a) apply to (a) Damages resulting from fraud or (b) Damages arising out of breaches of the representations and warranties set forth in Sections 3.1 , 3.2 , 4.1 or 4.2 . Notwithstanding anything herein to the contrary, for purposes of this Article 6 , all "materiality", "Material Adverse Effect" and similar qualifications in the representations and warranties contained in this Agreement (or contained, incorporated or referenced in any certificate delivered pursuant to this Agreement) shall be disregarded solely for purposes of calculating the amount of such Damages, but shall not be disregarded for purposes of determining whether a Breach of any such representation or warranty contained in this Agreement (or contained, incorporated or referenced in any certificate delivered pursuant to this Agreement) has occurred.
  2. Notwithstanding anything contained in this Agreement to the contrary, except with respect to claims under the Distribution Agreement or as otherwise expressly provided in any other Transaction Document, each party acknowledges and agrees that from and after the Closing, its and any of its Indemnified Persons' sole and exclusive remedies with respect to any and all claims against the other party or its Affiliates arising out of or relating to this Agreement (including for Breaches of representations and warranties) or any of the transactions contemplated hereby, or the Purchased Assets shall be pursuant to the indemnification provisions set forth in this Article 6 and Section 7.12 , or as otherwise provided in the Transaction Documents.
  3. Notwithstanding anything contained in this Agreement to the contrary, no Indemnifying Person shall have any obligation to indemnify any Indemnified Person for 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 6 and Section 7.12 . 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

19


    Transaction Document against any amounts owed by it to the other party under this Agreement, any other Transaction Document or any other agreement.

6.5   PROCEDURE FOR INDEMNIFICATION-THIRD-PARTY CLAIMS

  1. Promptly after receipt by an Indemnified Person under Section 6.1 , 6.2 , or 7.12 of notice of the commencement or Threatened commencement of any third-party Proceeding against it (a "Third-Party Claim" ), such Indemnified Person shall, if a claim is to be made against a Person (the "Indemnifying Person" ) under Section 6.1 , 6.2 , or 7.12 , give written notice containing reasonable detail to the Indemnifying Person of the assertion of such Third-Party 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 prejudices the defense of such Third-Party Claim.
  2. If any Third-Party Claim is brought against an Indemnified Person, the Indemnifying Person may participate in the defense of such Third-Party Claim and, to the extent that it may elect, to assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Person. In such event, the Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Indemnified Person under Section 6.1 , 6.2 , or 7.12 , as applicable, for any fees of other counsel with respect to the defense of such Proceeding; provided , however , that if the Indemnifying Person and the Indemnified Person are both named parties to the Proceeding and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, then the Indemnified Person may participate in such defense with one separate counsel (and one additional separate local counsel) at the reasonable expense of the Indemnifying Person. An election to assume the defense of a Third-Party Claim shall not be deemed to be an admission that the Indemnifying Person is liable to the Indemnified Person in respect of such Third-Party Claim or that the claims made in the Third-Party Claim are within the scope of or subject to indemnification under Section 6.1 , 6.2 , or 7.12 , as applicable. If the Indemnifying Person assumes the defense of a Third-Party Claim, then the Indemnified Person may participate in the defense of such Third-Party Claim, including attending meetings, conferences, teleconferences, settlement negotiations and other related events (and to employ counsel at its own expense in connection therewith); provided , it being understood that the Indemnifying Person shall control the defense of such Third-Party Claim. If the Indemnifying Person assumes the defense of any such Third-Party Claim, the Indemnified Person shall cooperate with the Indemnifying Person in the defense of such Third-Party Claim. If the Indemnifying Person assumes the defense of the Third-Party Claim, no compromise or settlement of such claim may be effected by the Indemnifying Person without the Indemnified Person's prior written consent (which shall not be unreasonably withheld, conditioned or delayed) unless (i) there is no finding or admission of any violation of Legal Requirements or any violation of the rights of any Person, (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person 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 6.1 , 6.2 , or 7.12 , as applicable, unless the Indemnifying Person fails to assume and

20


    maintain the defense of such Third-Party Claim pursuant to this Section 6.5(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.

6.6   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.

6.7   NET RECOVERY; MITIGATION; TREATMENT; ETC.

The amount of any Damages for which indemnification is provided under Section 6.1 , 6.2 , or 7.12 , 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 6.1 , 6.2 , or 7.12 in respect of such Damages nor delay any payment pursuant to Article 6 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 6.1 , 6.2 , or 7.12 , 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 6 , 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 6 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 commercially reasonable steps in accordance with Legal Requirements to mitigate any Damages for which indemnification is provided under Section 6.1 , 6.2 , or 7.12 , 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.

21


ARTICLE 7. GENERAL PROVISIONS

7.1   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.

7.2   NOTICES 8

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
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

_____________________
8 Note: To be confirmed at time of execution.

22


If to Buyer :

S&W Seed Company
1974 N. Gateway Blvd., Suite 104
Fresno, CA 93727
Fax: (559) 255-5457

7.3   DISPUTE RESOLUTION; GOVERNING LAW; JURISDICTION

  1. Except as set forth in Section 7.4 , any dispute between the parties arising out of or relating to this Agreement or the Contemplated Transactions, or the interpretation, validity or effectiveness of this Agreement, or any provision of this Agreement, in the event the parties fail to agree, shall, upon the written request of a party, be referred to designated senior management representatives of the parties for resolution. Such representatives shall promptly meet and, in good faith, attempt to resolve the controversy, claim or issues referred to them.
  2. If such representatives do not resolve the dispute within thirty (30) days after the dispute is referred to them, the dispute shall be settled by binding arbitration, in accordance with the Center for Public Resources ( "CPR" ) Rules for Non-Administered Arbitration of Business Disputes. For disputes in which the amount in controversy is less than or equal to U.S. $1,000,000, the parties shall mutually select one (1) neutral arbitrator who shall be qualified by experience and training to arbitrate commercial disputes. If the parties cannot agree on an arbitrator or if the amount in controversy exceeds U.S. $1,000,000, such dispute shall be settled by three (3) arbitrators who shall be qualified by experience and training to arbitrate commercial disputes, of whom each party involved in the arbitration shall appoint one, and the two appointees shall select the third, subject to meeting the qualifications for selection. If the parties have difficulty finding suitable arbitrators, the parties may seek assistance of CPR and its CPR Panels of Distinguished Neutrals. Judgment upon the award or other remedy rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be in Wilmington, Delaware. The arbitrators shall apply the substantive law of the State of Delaware, without regard to its conflicts of law principles, and their decision thereon shall be final and binding on the parties. Discovery shall be allowed in any form agreed to by the parties, provided that if the parties cannot agree as to a form of discovery (i) all discovery shall be 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 7.2 (as such address may be updated from time to time in accordance with the terms of Section 7.2 ). Any arbitration contemplated by this Section 7.3 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 7.2 (as such address may be updated from time to time in accordance with the terms of Section 7.2 ) and such demand letter shall state the amount of relief sought by the party making

23


    the demand. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.

  1. All proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the parties to each other or to the arbitration panel in connection with this Section 7.3 shall be deemed to be in furtherance of settlement negotiation and shall be privileged and confidential, and shielded from production in other Proceedings except as may be required by Legal Requirements.
  2. This Agreement shall be governed by the substantive laws of the State of Delaware, without regard to its conflicts of laws principles, and, except as otherwise provided herein, the State and Federal courts in the City of Wilmington, Delaware shall have exclusive jurisdiction over any Proceeding seeking to enforce any provision of, or based upon any right arising out of, this Agreement or the Contemplated Transactions. The parties hereto do hereby irrevocably (i) submit themselves to the personal jurisdiction of such courts, (ii) agree to service of such courts' process upon them with respect to any such Proceeding, (iii) waive any objection to venue laid therein and (iv) consent to service of process by registered mail, return receipt requested in accordance with and at its address set forth in Section 7.2 (as such address may be updated from time to time in accordance with the terms of Section 7.2 ).
  3. The parties acknowledge and agree that the foregoing choice of law and forum provisions are the product of an arm's-length negotiation between the parties.
  4. Notwithstanding anything to the contrary in this Section 7.3 , either party to this Agreement may seek, in the State or Federal courts in the City of Wilmington, Delaware, interim or provisional injunctive relief (or similar equitable relief) to maintain the status quo until such time as the designated senior management representatives of the parties resolve a dispute referred to them or an arbitration award or other remedy is entered in connection with such dispute pursuant to this Section 7.3 and, by doing so, such party does not waive any right or remedy available under this Agreement.

7.4   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.

7.5   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

24


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.

7.6   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.

7.7   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) 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 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 7.7 shall be void.

7.8   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.

25


7.9   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.

7.10   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.

7.11   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 7.11 .

7.12   PERFORMANCE BY AFFILIATES; BULK SALES LAWS

  1. The parties hereby agree that the obligations to be performed under this Agreement may be performed by any Affiliate of Seller or Buyer, as the case may be; provided always that any such Affiliate has the legal and corporate (or other organizational) capacity to grant or transfer the relevant assets or to perform the relevant obligations (as the case may be)

26


    and that it is authorized to do the same by its own articles of association, by-laws, or other relevant constituent documents and internal regulations. Notwithstanding the foregoing, Buyer and Seller shall remain primarily liable for the obligations to be performed by their respective Affiliates.

  1. Each party hereby irrevocably and unconditionally guarantees to the other party the due and punctual observance of all of the terms and conditions of this Agreement performed, or to be performed, by its respective Affiliates and each party agrees to indemnify (subject to any limitations on indemnification contained in this Agreement) the other party hereto for and against any Damages incurred by the other party as a result of the Indemnifying Person's Affiliates not complying with any of its relevant obligations under or pursuant to this Agreement or in the event any such obligations of such Affiliates being or becoming void, voidable, unenforceable or ineffective as against such Affiliate for any reason whatsoever.
  2. Buyer and Seller hereby waive, and shall cause their applicable Affiliates to waive, compliance with the provisions of any bulk sales, bulk transfer or similar Legal Requirements that may be applicable with respect to all or any of the Contemplated Transactions

7.13   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]

27


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:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

 

 

BUYER :

 

[S&W SEED COMPANY]

   
   

By:

_________________________________________

Name:

_________________________________________

Title:

_________________________________________

[Signature Page to Asset Purchase and Sale Agreement]


EXHIBIT 99.1

S&W Seed Company Signs Definitive
Agreements for $31.7 Million Financing to
Complete Purchase of DuPont Pioneer's Alfalfa
Business

Financing includes private placements of convertible debt with
warrants and common stock

For Immediate Release

Contact:

Robert Blum, Joe Dorame, Joe Diaz
Lytham Partners, LLC
602-889-9700
sanw@lythampartners.com
www.lythampartners.com

Matthew Szot
Chief Financial Officer
S&W Seed Company
559-884-2535
www.swseedco.com

FIVE POINTS, California - December 31, 2014 - S&W Seed Company (Nasdaq: SANW), announced today that it has entered into definitive agreements with institutional and accredited investors for a private placement of convertible debt with warrants and a private placement of common stock to raise a total of $31.7 million to complete the purchase of DuPont Pioneer's alfalfa research and production business. The private placements and the acquisition are expected to close simultaneously on December 31, 2014.

In the private placement of convertible debt with warrants, the Company will issue $27.0 million of secured convertible debentures. The debentures are convertible at a conversion price of $5.00 per share, bear interest at 8% per annum, and mature in 36 months from closing. The debenture holders will also receive warrants to purchase 2,700,000 shares of common stock at an exercise price of $5.00. The warrants will expire in 5.5 years.

In the private placement of common stock, the Company will issue to one institutional investor, MFP Partners, LP, 1,294,000 shares of its common stock at a purchase price of $3.60 per share for gross proceeds of approximately $4.7 million. No warrants will be issued in connection with the common stock placement.

As previously announced, S&W intends to use the net proceeds of the private placements to complete the acquisition of DuPont Pioneer's alfalfa production and research facility assets, as well as conventional (non-GMO) alfalfa germplasm. With the acquisition, S&W Seed Company will be the global leader in alfalfa seed, with unrivaled research and development, production and distribution capabilities.


</